
    Paul J. Schweig, Appellant, v. The Manhattan Leasing Company, Respondent.
    (Supreme Court, Appellate Term,
    May, 1907.)
    Evidence — Parol evidence — Collateral and independent agreements, etc.— Prior or contemporaneous independent agreements, etc.—As to possession and repair of demised premises.
    A collateral agreement, made prior to the signing of a written lease and in consideration thereof, that the landlord will give the tenant possession of the demised premises on the -15th of August o prior to the commencement of the term of the lease and on that day will have the premises in a habitable and tenantable condition, and that the written lease shall not take effect unless possession is so given, is a valid agreement; and, in an action by the tenant for the breach of such collateral agreement, it is error to exclude parol evidence tending to prove the same.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of New York, twelfth district, borough of Manhattan.
    
      I. Henry Harris, for appellant.
    Goldfogle, Cohn & Lind, for respondent.
   Seabury, J.

The complaint alleges that the plaintiff and defendant entered into a lease whereby the defendant let to the plaintiff a certain apartment in the premises specified in the lease for the term of two years, commencing October 1, 1905, and terminating September 30, 1907, in consideration of an annual rent of $1,400. The complaint also alleged that, as an additional consideration to the plaintiff for the signing of the lease, the defendant agreed to give the plaintiff the possession of said premises on August 15, 1905, and on that day to have the premises in a habitable and tenantable condition and alleges a breach of this agreement by the defendant. Upon the trial the counsel for the plaintiff attempted to prove that, as a condition for making the lease, it was agreed that the lease should not take effect unless possession was given to the plaintiff on August 15, 1905, but was prevented from so doing by the rulings of the learned trial justice. It is true that several of the questions propounded by the counsel for the plaintiff were objectionable in form, but this cannot be asserted of all of them; and it is clear from the record that they were objected to and excluded upon the ground that, the lease being in writing, parol evidence to prove the agreement alleged was incompetent. We think these rulings were erroneous, and that the plaintiff was entitled to prove the collateral agreement, made prior to the signing of the lease and in consideration,of the lease itself. Chapin v. Dobson, 78 N. Y. 74; Reynolds v. Robinson, 110 id. 654; Corn v. Rosenthal, 1 Misc. Rep. 168, affd., 3 id. 72; see also 3 id. 639. We regard the case at bar as similar in principle to the ease of Corn v. Rosenthal, supra.

Gildersleeve and Brady, JJ., concur.

r Judgment reversed and new trial ordered, with costs to appellant to abide event.  