
    James R. Thomas, Landlord-Respondent, v. Johanna Dingleman, Tenant-Appellant.
    (Supreme Court, Appellate Term,
    November, 1904.)
    Summary proceedings — Counterclaim for expenditures for repairs — When evidence of an independent oral agreement by landlord is admissible.
    Where a lease contains a clause “ that the tenant shall * * * at her own cost and expense make and do all the repairs ”, it is proper to exclude testimony as to a counterclaim for moneys expended on such repairs, which is sought to be introduced because 'of an alleged prior oral agreement that the lessor should put the premises in perfect order before the term.
    Such prior oral agreement is merged in the lease, and such testimony tends to alter the terms of a written instrument.
    
      Semite, that, had the lease remained silent as to repairs, the proof might be admissible.
    An independent oral agreement may be shown only when the instrument does not, upon inspection, appear to be a complete contract, designed to express the whole agreement between the parties.
    Appeal by the tenant from a judgment of the- Municipal Court of the city of Hew York, twelfth district, borough of Manhattan, dismissing a counterclaim in a summary proceeding brought for nonpayment of rent.
    R. & A. C. Weil, for appellant.
    Sidney H. Stuart, for respondent.
   Freedman, P. J.

The petition is the usual one for nonpayment of rent. The lease was dated July 15, 1903, and its term was for five years from September 1, 1903, and contained a clause “ that the tenant shall take good care of the house and its fixtures, and suffer no waste, and shall at her own cost and expense make and do all the repairs required to the plumbing work and pipes, furnace, range and fixtures belonging thereto, and shall keep the croton pipes and the connections with the croton main free from ice and other obstructions at her own expense.”

The answer admits the making of the lease, but sets up as a counterclaim, allegations, that before the execution of the lease as an inducement to execute the same, it was agreed between the parties that the landlord should put the premises in perfect and first class order, condition and repair. That the tenant could and did not discover the condition of the plumbing and other defects of the premises, until she took possession thereof, that upon the refusal of the landlord to make the repairs she did so at an expense of $111.35, that she has offered to pay all the rent due except the amount of the expenses incurred by her, and asks to pay the sum of $325.50 into court, being the amount due for rent less the claim for said repairs, and finally prays for a final order dismissing the petition.

Upon the trial the proof showed that the defendant entered into possession of the premises August fifteenth, although her term did not commence until September first, that her alleged counterclaim was set forth in a bill of particulars filed, which contained items for repairs extending over a period beginning from September 5, 1903, and ending April 28, 1904, and all relating to plumbing and other work specified in the lease and which by its terms the defendant agreed to do. Hpon this appearing the Trial Court ruled out any testimony relative to the alleged counterclaim as set forth in the bill of particulars. In this he was correct. The agreement sought to be proven was merged in the lease. Had the lease remained silent upon the question of repairs as in Van Derhoef v. Hartmann, 63 App. Div. 419, relied upon by the appellant, it might have been claimed with some force that proof of a collateral independent agreement as an inducement to enter into the lease could be shown, but the testimony sought to be introduced by the defendant was an attempt to change or alter the terms of a written instrument and was properly excluded by the court.

In order to bring a case within that class of cases where proof of an oral independent agreement made at the same time as a written instrument may be given, the writing must not appear upon inspection to be a complete contract, embracing all the particulars necessary to make a perfect agreement and designed to express the whole arrangement between the parties, for in such a case it is presumed to embrace the entire contract. Thomas v. Scutt, 121 N. Y. 133.

Bischoff and Fitzgerald, JJ., concur.

Judgment affirmed, with costs.  