
    SAMUEL G. JEFFERS and ASENATH W. JEFFERS, Appellants, v. CONSTANTINE BANTLEY, Impleaded, etc., Respondent.
    
      Grounds of a motion for a, new trial must be stated — effect ef am, oral agreement modifying the terms of a written lease for a t&rm of th/ree yearns.
    
    Where the appeal-book does not disclose the ground upon which a motion for a new trial was made, and it does not appear by the record that the case contains all of the evidence, the appeal does not present the question whether the verdict is contrary Jo the evidence, nor any alleged errors on the part of the jury.
    In aa action brought to recover rent, the defendants admitted that the rent became due on the day mentioned, but alleged that, immediately subsequent to the execution of the written lease under which such rent became due, which lease was for a term of three years, an oral contract was made between the parties to such lease, by which, in consideration of the payment by the lessees of five dollars a year more than the rent specified in said lease, the lessors agree to make all necessary repairs on the demised premises, or to permit the defendants, the lessees, to make such repairs and to deduct the cost thereof from the rent reserved; that, subsequent to such oral agreement, the defendants necessarily expended an amount, in making necessary repairs, in excess of the rent to recover which this action was brought:
    
      Held, that, although the oral agreement was in violation of the statute of frauds, as it was not to be performed within one year from the making thereof ; that nevertheless, the lessees, as they had not received notice from the lessors of any intention on their part to rescind such oral agreement prior to the time of the making of such repairs, were entitled in this action to offset moneys, actually expended upon the faith of such oral agreement, from the rent reserved by the lease.
    Appeal from a judgment of tbe Cbemung County Court, entered on tbe verdict of a jury in favor of tbe defendant, upon a retrial of an action brought by appeal to said county court from a justice’s oourt, and from an order denying a motion for a new trial made on tbe minutes.
    
      Wilmot E. Knapp, for tbe appellants.
    
      Jacob SoJmcurtz, for tbe respondent.
   Follett, J.:

Appeal from a judgment of a County Court, entered on a verdict upon a retrial of an action appealed from a Justice’s Court and from an order denying a motion for anew trial made on tbe minutes.

Tbe appeal book not disclosing tbe grounds upon wbicb tbe motion for a new trial was made, nor that tbe case contains all of tbe evidence, the appeal from tbe order, if appealable (Reilley v. D. and H. C. Co., 102 N. Y., 383), does not present tbe question that tbe verdict is contrary to the evidence, nor any of tbe alleged errors of tbe jury (Hinmam, v. Stillwell, 34 Hun, 178; Cheney v. N. Y. C. and H. R. R. R. Co., 16 id., 415 ; Porter v. Smith, 35 id., 118; affirmed, 107 N. Y., 531); but tbe questions raised by exceptions may be reviewed upon tbe appeal from tbe judgment. February 20,1884, tbe parties executed a lease under their bands and seals by vyhich the plaintiffs' leased to tbe defendants certain real estate and machinery for three years from April 1, 1884, for tbe annual rent of $420, payable in equal bi-montbly payments, to wit, seventy dollars, April 1, 1884,. seventy dollars, June 1, 1884, and so on to tbe end of tbe term.. Tbe lease did not bind tbe lessors to make any repairs except to- furnish sufficient ceiling for a shop which defendants were to put on. April 1, 1884, the defendants entered into possession and thereafter paid rent, as both parties agree, at the rate $425 per annum, or seventy dollars and eighty-four cents bi-monthly, in advance. The rent due April 1, 1884, was paid in cash. The rent due June 1, 1884, was paid, fifty-nine dollars and eighty-four cents, in cash, and eleven dollars in repairs. The rent due August 1,1884, was paid, sixty-four dollars and seventy-nine cents, in cash, and six dollars and five cents in repairs. The rent due October 1. 1884, was paid in cash. It does not appear whether the rent due December 1, 1884, February 1,'1885, and April 1, 1885, was paid.

This action was brought to recover seventy dollars, the rent due by the terms of the written lease, June 1, 1885. The defendants admit that the rent due on that day has not been paid; and allege that February 21, 1884 (the day after the execution of the written lease), an oral contract was made between, the parties by which, in consideration of the payment of five dollars per annum more rent, the plaintiffs agree to make all necessary repairs on the property, or permit defendants to make such repairs and deduct the cost from the rent, and that in the spring of 1885 the defendants necessarily expended eighty-two dollars and four cents in repairs. That the repairs made were necessary and that the sum expended was reasonable was not disputed on the trial. The facts in issue were: First. Was the oral agreement alleged in the answer made between Bantiey, one of the lessees, in behalf of both, and Samuel G. Jeffers, one of the lessors, in behalf of both? Second. Did Asenath W. Jeffers, the other lessor, learn of the oral agreement so made prior to April 1, 1884, and assent to it ? Both facts were found in favor of the defendants.

The evidence is undisputed that all payments were made to Samuel G, Jeffers or to Losie, plaintiffs’ agent, and it was not claimed that any sums had been paid to Mrs. Jeffers; and the fact called for by the seventh interrogatory was entirely immaterial.

Samuel G. Jeffers testified that $425 was agreed upon as the annual rent before the execution of the written lease, and that thereafter there was no conversation about raising the annual rent five dollars. In reply to this, the defendants were permitted to prove, by the draughtsman of the lease, that he read it to the parties, and it was not suggested by either that the amount stipulated, $420, was incorrect. It was not error to receive this evidence of the draughtsman.

The only other question presented upon this appeal is : Did the court err in receiving evidence of the oral agreement and, after its existence was found by the jury, in nolding that the defendants were entitled to counter-claim under it. the amount necessarily expended for repairs?

It is urged: (1.) That the oral agreement was insufficient to effect a surrender of this lease for three years, under the sixth section of the first title of the statute of frauds. (2 R. S., 134.) And that by the terms of the oral agreement it was not to be performed by the defendants within one year from the making thereof, and for that reason was within the first subdivision of the second section of the second title of the statute of frauds, and void; also, that the lease under seal could not be modified before condition broken by an executory oral contract. None of these questions seem to be an obstacle to the defendant’s right to be allowed for these repairs.

“ If one pays money or renders service, or delivers property upon an agreement condemned by the statute of frauds, he may recover the money paid in an action for the money had and received; and he may recover the value of his services and of his property upon an implied assumpsit to pay, provided he can show that he has been ready and willing to perform the agreement, and the other party has repudiated or refused to perform it.” (Day v. N. Y. C. R. R. Co., 51 N. Y., 583, 590; Reed Stat. Frauds,' § 621.) In this case the defendants made the repairs claimed for before the jfiaintiffs rescinded or repudiated the oral agreement which the jury found was made. It is true that Losie testified that when he was called upon to make repairs he examined the written lease and notified the defendants that the plaintiffs were not required to make repairs. On the contrary, Bantley testified that he told Losie the roof leaked and needed repairing, and Losie said he would do it; and that he did not say to Losie or Buchanan that the plaintiffs’ obligation to make repairs arose from the written lease.

The defendants in this action, having performed their part of this oral agreement, had a right to rely upon the plaintiffs carrying it out, unless the plaintiffs unequivocally rescinded it and gave notice of the rescission, which was not done, prior to mating the repairs. IJpon this ground, if upon no other, the judgment should be sustained.

The judgment and order are affirmed, with costs.

Hardin, P. J., and Martin, J., concurred.

Judgment and order affirmed, with costs.  