
    James A. Flomerfelt, Appellant, v. Herman Englander, Respondent.
    (Supreme Court, Appellate Term,
    November, 1899.)
    Lease — Delivery — Contemporaneous parol agreement — Acceptance.
    Where a lease has never been delivered to an alleged tenant and he has never entered, no action for rent can be maintained against him. In such an action, the tenant may prove a contemporaneous parol agreement, between the parties, that the lease, although signed in duplicate, was not to be delivered until certain repairs had been made upon the premises. Where the rent is payable in advance, the payment of a part of it by the tenant is not, under such circumstances, to be construed as an acceptance by him of the lease, but simply as an earnest that he would fulfill his part of the agreement provided the landlord did likewise.
    Appeal from a judgment in favor of the defendant, rendered in the Municipal Court of the City of New York, eighth district, borough of Manhattan.
    William D. Tyndall, for appellant.
    Louis Levy, for respondent.
   Leventritt, J.

The plaintiff sues on a written lease to recover the first month’s installment of rent.

On March 29, 1899, the parties to this action signed and sealed, in duplicate, an indenture providing for the letting and hiring of certain designated premises for one year from the first day of May following. Rent was to be paid monthly in advance. The defendant, on the execution of the lease, paid a deposit of twenty dollars, which was to be applied on the first month’s rent. The plaintiff retained the duplicate leases, neither was ever delivered to the defendant and he never entered into possession of the premises.

On the trial the defendant was permitted to prove an oral agreement that the leases were signed conditionally, and that their delivery was to be postponed until certain repairs had been made. The admission of this testimony was not error. The lease did not become a perfect lease until the contemplated repairs had been made. Parol evidence is admissible to prove The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property.” Stephen Ev., art. 90; Browne Par. Ev., 279; Dietz v. Farish, 79 N. Y. 520, 524. Had there been a positive acceptance of the lease, parol evidence would have been incompetent to vary the terms of the completed contract. Gates v. Green, 4 Paige, 355. The plaintiff concedes, by his testimony, that there was no delivery of the lease, as he instructed his bookkeeper to withhold delivery until the defendant made further payment. This further payment was admittedly not made. In Witthaus v. Starin, 12 Daly, 226, a lease, for a term, to commence at a future date, was signed by both parties in duplicate and left with the agent of the lessor, with directions that it should not be delivered to the lessee until the first month’s rent had been paid. Before the commencement of the term, the lessee requested permission to see the lease for the purpose of showing it to his attorney, but was refused because of a failure to pay the rent. It was held that the lessee was not bound as there had been neither delivery nor acceptance. The mere payment of the deposit cannot be construed into an acceptance. It was simply an earnest on the part of the lessee to perform the conditions on him devolving, provided the landlord fulfilled the terms of the agreement on his part reserved. .

The judgment is consonant with law and justice and should be affirmed.

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs to respondent.  