
    The Herschmann-Tucker Furniture Company, Respondent, v. Alfred Barth and Charles J. Hardy, Individually and as Trustees Under the Last Will and Testament of Augustus Barth, Deceased, Appellants.
    (Supreme Court, Appellate Term,
    June, 1909.)
    Evidence — Parol evidence — The general rule and its applications — Admissibility of parol evidence to vary or contradict written instruments in general — Showing oral agreement where written instrument was in execution thereof.
    Modification and merger of contracts — Merger in subsequent agreement of prior order — Instrument partially executing oral agreement.
    An agreement between landlord and tenant that the latter will surrender his existing lease; that the landlord will make eertain repairs and alterations, and that the landlord will then make a new lease to the tenant upon certain terms is not executed nor merged in the lease subsequently executed; and parol proof of the terms of the agreement does not tend to modify the lease and is admissible in an action by the tenant founded thereon.
    Appeal by the defendant Barth from a judgment of the Municipal Court of the city of ¡New York, third district, borough of Manhattan, rendered in favor of the plaintiff.
    J. M. Shellabarger, for appellant;
    Samuel Sturtz, for respondent.
   MacLean, J.

The plaintiff,’ in its amended complaint, declared that the defendants, in consideration of the plaintiff’s surrendering and cancelling a lease of certain premises, would execute and deliver to the plaintiff a new lease of the same premises, and promised and agreed, in consideration therefor, that they would cause certain alterations and repairs to be made and paid for by them, irrespective of cost, and that pursuant to said agreement and at the request of the defendants the plaintiff caused said repairs to be made for the reasonable sum, etc. The defendant-appellant denies this, and contends that the provisions of the new lease, subsequently executed and exchanged by the parties, relative to alterations and repairs are controlling; “that a written contract merges all prior and contemporaneous negotiations and oral promises in reference to the same subject, and that, when the terms of a lease are in writing, the rights and duties of the joarties depend upon the terms or legal intendment of the lease itself, or, as otherwise expressed, that it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking are embraced in the writing ” (Wilson v. Deen, 74 N. Y. 531, 534), a rule of law that has been iterated and reiterated by our court of last resort (Thomas v. Scutt, 127 N. Y. 133; House v. Walch, 144 id. 418; Murdock v. Gould, 193 id. 369; Lossing v. Cushman, 195 id. 386; N. Y. L. J., June 8, 1909), and applicable herein were this action founded upon the contract of lease; but it does not apply where the original contract, though entire, was oral, but in part reduced to writing, and so “to be proved by the uncertain testimony of slippery memory.” Chapin v. Dobson, 78 N. Y. 74, 79. The evidence discloses that the defendant-appellant executed and delivered a lease of the premises to the plaintiff in the latter part of the year 1904, for a term of five years to commence May 1, 1905, and that the plaintiff paid the rent for the first month, and, according to the testimony adduced by the plaintiff, the defendant, discovering that he could not give possession, went to the plaintiff and said, “ I have given you a lease which I cannot deliver to you. I find that it is a year hence, but -not during the time as specified in that lease. Will you do something to relieve me? These people next door want $5,000 to get out. * * * I will give you the benefit of whatever I can if you will release me. * * * I will draw up a new lease and I will make any alterations.” This was the contract between the parties and the entire contract, the promise by the plaintiff to surrender its rights under the lease of 1905 in consideration of the promise of the defendant to make a new lease to commence Hay 1, 1906, and to make the alterations the subject of the present claim, of which the making of the lease for 1906 was only a part. Therefore, it was not erroneous to admit the evidence, oral or written, or what occurred between the parties- antecedent to the execution and exchange of the new lease foi’ 1906; and, as the trial justice has found, so let the judgment stand.

IGildersleeve and Seabury, JJ., concur.

Judgment affirmed, with costs.  