
    Benjamin Stearns and Solomon Spingarn, Respondents, v. Melvin Lichtenstein and Others, Appellants.
    
      Supplemental complaint — when it maybe attacked by demurrer—orat, agreement between a lessor and lessee that the tenancy of other tenants shall terminate at a certain date — continuance in possession after its breach—rule of damages not determined on demurrer.
    
    A supplemental complaint, served in lieu of the original complaint, may be-attacked by demurrer in the same manner as the original complaint.
    An oral agreement, made on October 20, 1894, by which the .owner of a building stipulates that, if the other parties to the agreement will take a lease of a portion of the building, he will terminate the tenancy of other, tenants of the building on February 1, 1895, and that, after that date, “ said tenants should no longer occupy any portion of said building or be tenants therein, either directly or indirectly,” is not within the. Statute of Frauds.
    Such an agreement is an independent, collateral agreement, which does not. merge in the written lease executed in reliance thereon.
    The fact that the persons with whom the agreement is made remain in possession of the portion of the premises demised to them, with knowledge that the lease-of the other tenants has not been terminated, as agreed upon, does not preclude them from maintaining an action against the landlord to recover dam- . ages resulting from the breach of the oral agreement.
    The question whether they may in such an action recover the loss which they sustained from the destruction of their goods by fire, upon the ground that the-presence of the other tenants in the building prevented them from obtaining adequate fire insurance, will not be determined upon a demurrer to the complaint.
    Appeal by,the defendants, Melvin Lichtenstein and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 20th day of April, 1899, upon the decision of the court rendered after a trial at the New York Special Term overruling a demurrer to the supplemental complaint of the plaintiffs, interposed ' on the ground that it did not facts sufficient to constitute a cause of action.'
    This appeal was transferred from the first department to the-second department.
    
      William N. Cohen, for the appellants.
    
      Jonas B. Weil, for the respondents.
   Willard Bartlett, J.:

Under section 544 of the Code of Civil Procedure a party may apply for leave to make a supplemental pleading, either in addition to or in the place of the former pleading. While there has been some diversity of judicial opinion as to whether a demurrer may be interposed to a supplemental complaint which is additional to the original complaint and leaves the original complaint still standing as a pleading in the action, we think it clear that when the supplemental complaint comes into the case in lieu of the original, it may be attacked by demurrer in the same manner.

The plaintiffs’ claim is foundéd upon the alleged breach of an oral agreement made between the defendants’ testator, Benjamin Lichtenstein, and the plaintiffs, whereby Lichtenstein agreed that if the plaintiffs would take a lease from him of a certain portion of the premises No. 640 Broadway, in the city of New York, the tenancy of a firm known as Hecht & Co., then occupying a loft in the building, would be terminated by said Benjamin Lichtenstein on the first day of February, 1895, at which time said Benjamin Lichtenstein represented to the plaintiffs that the tenancy of said Hecht & Company’ expired, and he agreed that after said first day of February, 1895, said tenants should no longer occupy any portion of said building or be tenants therein either directly or indirectly.”

After setting out this agreement, the supplemental complaint alleges that the plaintiffs had declined to accept said lease without said agreement, for the reason that, as stated by them to Lichtenstein and as he well knew, the fact of Hecht & Co. being tenants of the building after the 1st day of February, 1895, would debar the plaintiffs from obtaining adequate fire insurance on their stock of merchandise in their business of manufacturing ostrich feathers. It is further alleged that, in consideration of the agreement and its reiteration by Lichtenstein, the plaintiffs accepted a lease of two lofts at No. 640 Broadway for the term of three years, commencing on February 1, 1895 ; that on or about that date they entered into possession of the said lofts under the lease, and otherwise fully carried out the terms of the agreement' on their part, but that the said Lichtenstein entirely failed and neglected to carry out the terms of the agreement on his part to be performed. It is charged that Lichtenstein did not cause the tenancy of Hecht & Co. to terminate on the 1st day of February, 1895, but permitted said firm to occupy, a "loft in the premises and remain tenants of the. building until the fifth day of November in that year; that by reason of Lichtenstein’s violation of his agreement the plaintiffs were unable to obtain good or adequate fire insurance on their stock of merchandise; that the plaintiffs repeatedly called the attention of Lichtenstein to the' violation of his agreement and to their inability to obtain sufficient fire insurance on their, stock by reason thereof, and said Lichtenstein repeatedly promised and agreed that he would carry out his said agreement and cause Hecht & Co. to vacate the loft occupied by them ; that the plaintiffs carried a stock of merchandise amounting to $64,000, upon which they were unable to obtain fire insurance for inore than $32,500 ; and that on the 5th day of November, 1895, the building No. 640 Broadway, and all the plaintiffs’ stock of merchandise, of the value of $64,000, were destroyed by fire, without fault or négligence on the part of the. plaintiffs.

The present ’ action is brought to recover damages which the . plaintiffs claim to have incurred by reason of their inability to obtain adequate insurance on their stock, resulting from Lichtenstein’s violation of his oral agreement to terminate the occupancy of Hecht & Co. in the building, immediately on February 1, 1895. • ' ■

. It is contended in the first place that the oral contract, as alleged in the supplemental complaint, is in violation of the Statute of F-rauds. We do not think so. • The agreement is alleged to have been made October 20, 1894, and the undertaking of Lichtenstein is alleged to. have been that the tenancy of Hecht & Co. would be' terminated with the 1st day of February, 1895. This, part of the agreement was certainly to be performed within one year. The supplemental complaint further alleges that Lichtenstein “ agreed that after said first day of February, 1895, said tenants should no longer occupy any portion of said building or be tenants therein, either directly or indirectly.” This allegation may fairly be regarded as merely an amplification of the terms of the agreement as previously stated. To make the contract void in any possible view under the Statute of Frauds, it must be construed as an engagement not only, to put out Hecht & Co. by February 2, 1895, but to keep them out if and whenever they should attempt to reoccupy No. 640 Broadway, during the three years .of the' plaintiffs’ tenancy. But such is not the necessary .construction. It is to be remembered that Lichtenstein was the owner of the premises. Speaking as landlord, in this agreement, he simply undertook that the occupation by Hecht & Co. of a portion of his property should cease immediately after tlie plaintiffs went into occupancy of another portion. The -agreement was not that Hecht & Co., being out, should not thereafter come in, but that, being in, their occupation should cease at a date certain, a few months later. If the agreement had been kept, the plaintiffs, according to the theory of the complaint, would have been able to obtain adequate insurance upon their goods, and hence would have sustained no loss by reason of the subsequent fire.

As to the appellants’ second point, that the oral contract was merged in the written lease, we find no difficulty under the authorities in sustaining what must have been the view of the learned judge * at Special Term, that it was an independent collateral agreement. (Lewis v. Seabury, 74 N. Y. 409; Thomas v. Scutt, 127 id. 133; Stowell v. Greenwich. Ins. Co., 20 App. Div. 188.) It is to" be observed that the lease dealt only with the plaintiffs’ occupation of the fourth and fifth lofts of the building, while the oral agreement dealt with Hecht and his occupancy of a different loft.

Nor do we think that the. plaintiffs precluded themselves from claiming damages by remaining in possession of that portion of the premises demised to them after knowledge that the objectionable tenancy had not been terminated as agreed upon. “ The taking and retaining of the demised premises by the lessee is not inconsistent with a remedy on the covenants to repair made by the landlord, and would not be a waiver of the tenant’s right to claim damages for a breach.” (Thomson-Houston Electric Co. v. Durant Land Imp. Co., 144 N. Y. 34, 44.) We do not see why the tenant’s occupancy is any more inconsistent with his right of action on an independent agreement of the character pleaded in this action.

As to the suggestion that the loss suffered by the plaintiffs in the fire is not the correct measure of damages, being too remote, it is enough to say that this question does not properly arise on demurrer. If there was a breach of the contract the plaintiffs were at all events entitled, to recover nominal damages, and that suffices to sustain the supplemental complaint in this respect.

The interlocutory judgment should be affirmed.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to the defendants to answer within twenty days upon payment of costs.  