
    M. Francis Snowber and R. Telfair Smith, Respondents, v. Moe Loeb, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1912.)
    Landlord and tenant — termination of relation — surrender and acceptance— leases and agreements in general — requisites and validity.
    Where an' agreement recites that it is understood that one of the parties thereto leases of "the other certain premises for a given period at a stated rent payable monthly in advance, and also acknowledges the receipt of the first month’s rent, it is a valid* and binding contract, though in terms subject to the terms of a lease, to be executed later, which the proposed tenant, objecting to some of the covenants, refused to sign and thereupon went into possession of the premises.
    Where the landlord accepted a surrender by accepting the keys from defendant, and refused to make any arrangement with the sub-tenant until defendant had entirely quit the premises, and then accepted rent from the sub-tenant, such acts were inconsistent with an estate outstanding in defendant.
    Appeal from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, third district, entered in favor of the plaintiffs after a trial by the court without a jury.
    Arthur Gutman, for appellant.
    James I. Moore, for respondents.
   Page, J.

The action was to recover rent for the months of June, July, August and September for premises consisting of one-half of a store, at a monthly rental of eighty dollars. The facts are as follows: On February 25, 1911, the parties signed the'following writing:

This agreement between Snowber & Smith and Moe Loeb of City of Mew York in which it is understood that the said Moe Loeb does léase the Merth Half of the -store 2190 Broadway from the 1st day of March, 1911, to the 1st day of October 1911, at the annual rent of Mine Hundred and Sixty Dollars ($960) dollars payable in equal monthly advance payments on the first day of each and every month of the lease. The terms of the lease are that Snowber & -Smith have the privilege of placing and maintaining their sign ‘ to let on said store in the month of July and until October 1st. The tenant is to restore the said store in as good condition should he vacate as in its present condition. This is a deposit receipt and is subject to the terms of the lease to be drawn tip and signed by both parties on Monday, February 27th, 1911, at the office of Snowber & Smith. The receipt of Eighty ($80) Dollars (in check) in payment of March rent is hereby acknowledged. The store is to be occupied for the business of butcher and fruit and vegetables.” '

A formal lease was drawn up and contained among many other covenants the following:

“ That if the said premises or any part thereof shall become vacant during the said term, the landlords or their' representatives may re-enter the same either by force or otherwise, without being* liable to prosecution therefor, and re-let the said premises as the agent of the said tenant and receive the rent therefor, applying the same, first to the payment of such expenses as they may be put'to in re-renting, and then to the payment of the rent due by these presents, the balance (if any) to be paid over to the tenant, who shall remain liable for any deficiency.” . .

The defendant refused to sign this lease on February 27th, and said that he would show it to his lawyer, and thereafter refused to sign it, objecting'.to some of the covenants. Plaintiffs refused to malee any change in it. Defendant went into possession and continued therein until May 31, 1911, and paid the rent up' to that time. He moved out and his brother left the key with the landlords, and they, on June 1st, gave the key to an Italian fruit and vegetable dealer, who had been in possession as subtenant of the' defendant, and received thirty dollars as one month’s rent. The Italian moved out at the expiration of one month and plaintiffs were unable to rent the premises although" they tried to do so. I do not think the judgment can be sustained on plaintiffs’ theory, which is, either that the clause above quoted became a part of the agreement of the parties that the “ deposit receipt” is subject to the terms of the lease to be drawn up; or that, by retaining a copy of the proposed lease and entering into possession, the defendant became . bound by its covenants.

The original agreement contained all the terms and conditions necessary to' a valid, binding contract between the parties. The failure 'to have the agreement put into a more formal document does not impair the validity of the original contract. Marcus v. Collins Bldg. & Const. Co. 27 Misc. Rep. 784. This is to be distinguished from the case where the parties intend that a mere-oral agreement shall be finally reduced to writing as the evidence of the terms of their contract; then it may be true that nothing is binding upon either party until the writing is executed. Here the contract was already in writing and it was none the less obligatory because it was intended that it should be put in some other form.' “A stipulation to reduce a valid written contract to some other form cannot be used for the purpose of imposing upon either party additional burdens or obligations or of evading the performance of those things which the parties have mutually agreed upon by such means as made the promise or assent binding in law.” Sanders v. Pottlitzer Bros. F. Co., 144 N. Y., 209, 213, 214. This case is to be distinguished from the case of People v. St. Nicholas Bank, 3 App. Div. 544; 151 N. Y. 592, in which, in the memorandum, the following language was used, “ The parties hereto agree to execute and exchange leases ■ of said rooms, prior to the occupancy thereof, such leases to be drawn on, and this agreement being subject to all the provisions of the blank forms in use in the Mills Building, except as modified by the above memorandum.” The court said (p. 548), “ Giving effect to those conditions' [contained in the blank form] is not arbitrarily importing into the agreement something not contained therein, but is reading into it that which the parties specifically contracted should form a part of it, and so those conditions come into play as subsisting terms of the contract, binding upon and enforcible against them both according to their tenor.” In the case at bar there was no reference to an existing form setting forth the terms and conditions to which reference could be had, and with respect to which the parties contracted, and the plaintiffs could not bind the defendant to accept any terms and conditions that it might please them to insert. Any term or condition not substantially within the agreement already executed by the parties would be a modification of the existing contract, and would require the assent of both parties to become' effective.

Therefore, I do not think the covenant above quoted can be held to have become incorporated into the agreement of February twenty-fifth, nor can it be claimed that by entering into possession of the premises with the unsigned lease in his possession, he adopted the terms and conditions thereof. As we have seen there existed a valid and binding written agreement between the parties under which the defendant could take possession. Therein the case differs from that of Wicke Co. v. Kaldenberg Mfg. Co., 21 Misc. Rep. 79, in which an oral agreement only had been made and a lease was to be prepared. The defendant entered into possession, not dissenting from the terms and conditions of the lease, Mr. Kaldenberg stating that it was hardly worth while to sign a lease for so short a period. The lease was, therefore, evidence of their actual agreement. Furthermore it appears that the plaintiffs accepted the surrender of the tenant. The keys, were delivered to the plaintiffs and they refused to make any arrangement with the" subtenant until the defendant had entirely quit the premises, and on the following Monday delivered the keys to him and collected thirty dollars rent from him. These acts were inconsistent .with an estate outstanding in the defendant. Schmidt v. Vahjen, 143 App. Div. 479; Gray v. Kaufman Dairy & I. C. Co., 162 N. Y. 388.

The judgment is reversed, with costs to appellant and the complaint dismissed, with costs.

Seabuby and Lehman, JJ., concur.

Judgment reversed1, with costs, and complaint dismissed, with costs.  