
    American Bill Posting Company, Respondent, v. William Geiger, Appellant.
    (Supreme Court, Appellate Term, Second Department,
    May, 1912.)
    Evidence — oral evidence — admissions — landlord and tenant.
    In an action for damages for failure to put plaintiff in possession of a roof leased for advertising purposes, oral evidence that the lease was delivered conditionally and was not to become effective if a tenant then in possession of the premises had a lease covering the same period is inadmissible.
    Appeal from a judgment for damages for failure to put plaintiff in possession of a roof leased for advertising purposes-.
    Alexander & Keenan, for appellant.
    Hirsh & Newman, for respondent.
   Per Curiam.

The serious question on this appeal is whether the learned justice below erred-in excluding evidence of an oral agreement that the written lease or agreement was delivered conditionally. The defendant delivered the instrument to the plaintiff in June, 1910, which by its terms, leased to plaintiff the roof of a building for one year from March 1, 1911, with a right to the tenant to renew for a like period of time on the same terms and conditions. The rental was $200 -per year, and the rent for the first year was' paid to the landlord, the defendant here, at the date of the execution and delivery of the instrument. The defendant retained the money, but two or three days before the commencement of the term in March, 1911, he notified the plaintiff that he could not deliver possession, because another tenant was in possession under a lease antedating that made to the plaintiff. On the trial the defendant sought to prove an oral agreement with the representatives of the plaintiff that the lease or agreement was delivered conditionally, not to become effective if a tenant then in possession of the premises had a lease for the year from March 1, 1911, to March 1, 1912, a fact which the defendant landlord professed to be ignorant of at the time the writing was delivered. This evidence was excluded by the justice.

While the old rules excluding oral evidence to vary a written instrument have been greatly relaxed (McCreery v. Day, 119 N. Y. 1), the doctrine, that agreements or deeds or instruments conveying an interest in real estate when once delivered cannot be avoided by oral agreements that the delivery was conditional, appears to be firmly established. Blewitt v. Booram, 142 N. Y. 357. While it may be as was said by Judge Bronson in Gilbert v. North American Fire Ins. Co. 23 Wend. 43, that the doctrine prevents the law from giving effect to the honest intention of the parties, the reason appears to be that the avoidance of duly delivered written instruments conveying interest in lands by parol would be to render titles to real estate insecure, and this class of instruments is excepted from the relaxed rule.

The award of damages appears • to be reasonable.

' Present: Kelly, Jaycox and Clark, JJ.

Judgment affirmed, with Costs,  