
    Joseph Spota, Respondent, v. Marcellus T. Hayes, Appellant.
    (Supreme Court, Appellate Term,
    December, 1901.)
    Lease — Local custom inadmissible — Principal and agent — Parol lease for more than a year void — Part performance at law.
    As against a written lease forbidding underletting, the tenant cannot prove a local custom of landlords permitting tenants to sublet during the summer months of the term, nor can the naked assent of the landlord’s agent to such a subletting avail the tenant, in an action for the rent of the summer months, so as to enable turn to offset the breach of the alleged agreement permitting him to sublet, assigned to him.
    • An oral lease for seventeen months is invalid under the Real Property Law (L. 1896, ch. 547, § 224), and part performance cannot save it, as that doctrine is confined to equity.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, second district, borough of Manhattan.
    J. Brownson Ker, for appellant.
    James Kearney, for respondent.
   McAdam, P. J.

The plaintiff sued to recover $150, three months’ rent, July, August and September, of the third apartment, rear, in the house on the north side of One Hundred and Fourteenth street, 150 feet east of Amsterdam avenue, in the borough of Manhattan,, demised to the defendant under a written lease for one year from October 1, 1899.

The defendant practically conceded that the rent for July and August had not been paid, and his defense as to the September rent was obviated by the withdrawal of that month from the plaintiff’s cause of action.

The defendant pleaded several alleged counterclaims.

First j that at the time the lease was executed by the parties there was a well-established custom in the city of Hew York, among landlords, to allow their tenants to sublet premises, leased during the summer months, and that said lease was entered into with reference to said custom.

Ho proof of any such custom could be received to vary or contradict the written lease, which expressly provides against any underletting. Lawson Usages, 272, § 132.

Second; that about June 12, 1900, the plaintiff’s agent agreed that the defendant (notwithstanding the covenant against under-letting) might sublet the premises to Miss Ross, for July, August and September; that the defendant thereupon sent his furniture to a warehouse and did sublet the premises in suit to her at the rate of fifty dollars per month, and that the defendant made an agreement for the board of himself and family at fifty-five dollars a month. For breach of the agent’s oral assent, the defendant claims that the landlord became indebted to him, the defendant, in the sum of one hundred and fifty-two dollars damages. The lease gave the defendant no such cause of action, and we cannot see that the covenant against underletting, which the landlord was careful to exact, can be transformed by the subsequent oral assent of an agent, without any new consideration moving to the landlord, into a right of action against him for damages.

The defendant also pleaded an oral hiring by Miss Ross of one of the apartments of six rooms, for a term of seventeen months from May 1, 1900, which the plaintiff refused to carry out, to her damage $850. This claim, the defendant alleges, was assigned to him.

The agreement, being for a term exceeding one year and not being in writing, was void (Laws of 1896, chap. 547, § 224), and gave rise to no right of action whatever.

The claim that there was part performance of the contract, because Miss Ross made arrangements on her part to carry it out, is unavailing. The rule is, that to take the case out of the operation of the statute, there must have been full performance by one of the parties to the contract; the doctrine of part performance is confined to courts of equity.” Waterman Spec. Perf., § 259; Nasanowitz v. Hanf, 17 Misc. Rep. 157.

The judgment, which was for the July and August rent, was right and must be affirmed, with costs.

MaoLeabt and Scott, JJ., concur.

Judgment affirmed, with costs.  