
    In the Matter of the Application of George Zillig, for the removal of Solomon Rubenstein et al.
    
    
      (Superior Court of Buffalo, General Term,,
    
    
      Filed December 30, 1887.)
    
    1. Landlord and tenant—Lease—Privilege to renew upon notice in WRITING, AND WAIVER OE REQUIREMENT FOR NOTICE IN WRITING, IS COMPETENT.
    The tenant was in the possession of the premises in question by virtue of a written lease under seal, for the term of four years, in which it was provided that the lessee might have the privilege of a further lease for two years after its expiration upon giving a written notice to the lessor, thirty days before the expiration of the lease. These proceedings were instituted to oust the tenant from the premises, the petition alleging the termination of the lease and failure to give the written notice provided for. The answer denied the expiration of the lease and alleged waiver of the written notice. Evidence was offered by the tenant before the trial to prove that in a conversation with his landlord, he had expressed his desire to renew the lease for the term mentioned therein and asked whether written notice would be necessary and that the landlord replied that it would not. Held,.that, it was competent for the parties to waive,' by paroi, the requirement for a written notice. Beckwith, U. J., dissenting, held that paroi evidence is not admissible to show that before a breach there was a paroi modification of a contract under seal.
    2. Same—Renewal op lease.
    
      Held, that the continuance of the lease *and waiver of written notice having been proven, such agreement operated as a renewal of the lease for the additional period of two years, and that the element of the statute of frauds was not in the case. Beckwith, C. J., dissenting.
    JET. B. Van Peyma, for tenant, app’lt; Joseph P. Schattner, for landlord, resp’t.
   Hatch, J.

The tenant was in the possession of certain Eremises by virtue o£ a written lease under seal. In and y the lease, it was provided that the lessee have the privilege of a further lease for two years after the expiration, upon giving a written notice to the lessor, thirty days before the expiration of the lease. No written notice was ever given. Upon the expiration of the lease, the landlord commenced proceedings to oust the tenant and recover possession of the premises. The petition, which forms the basis of the proceeding, alleges a single reason, entitling the lessor to the possession of the demised premises, to wit: The termination of the lease, by a failure to give the written notice before mentioned. The answer of the tenant, denied the expiration of the lease, and alleged a waiver of the written notice.

Upon the trial the tenant offered to prove by himself, wife and another witness that on or about March 1, 1887, he had a conversation with the landlord upon the premises, in which the landlord asked if he desired to continue in the-occupation of the premises for another two years, as provided in the lease; that the tenant answered yes, and thereupon asked ' the landlord if he wanted a written notice served upon him to that effect, as required by the lease; that the landlord replied that he did not, as the tenant’s word was just as good, and that it was not necessary to put it in writing. Objection was made to this proof on the part of the landlord, on the ground that it was irrelevant and immaterial. The court sustained the objection and the tenant excepted. We are of opinion that this ruling of the court was error. Long v. Stafford, 103 N. Y., 274; 3 N. Y. State Rep., 87.

It is there held, upon a lease, containing a precisely similar clause to this, that it was competent for the parties to waive, by paroi, the requirement of written notice, and this whether it was for the benefit of the lessee alone, or the lessor, or both, and that in the absence of an express agreement such waiver would be implied from the acts of the parties, which, in that case, was a holding over on the part of the lessees. Here the offer was to prove, by express agreement, the continuance of the lease and waiver of the written notice. With such agreement proved it operated as a renewal of the lease for the additional period of two years. The element of the statute of frauds is not in the case. The terms and conditions of the contract between the parties was embodied in the lease, which was in writing, and under seal; the effect of the agreement was to make it operative as an original lease for the further term of two years. House v. Burr, 24 Barb., 525; W. Trans. Co. of Buffalo v. Lansing, 49 N. Y., 499, 506.

The judgment should be reversed, and restitution of the premises ordered to the tenant with costs.

Titus, J., concurs.

Beckwith, C. J.

(dissenting)—The plaintiff, by a written lease, under seal, demised a store to the defendant for the term of one year, to end on the first day of May. The instrument there contained this provision: “It is also agreed that the second party is to have the privilege of a further lease of two years after the expiration of this lease upon giving a written notice to said first party, thirty days before •the expiration of -this lease.”

At the expiration of the term of one year the plaintiff instituted this proceeding to recover possession of the demised premises on the ground that the tenant was holding over without the permission of his landlord.

On the trial the defendant offered to prove that on or about the first of March, preceding the expiration of the term of one year, the plaintiff being present on the premises, asked the defendant if he wanted to keep the place for the ensuing two years, and that the defendant answered that he did, and asked if it would be necessary for him to give the written notice called for by the lease and that the plaintiff told him that it would not, that his word was good. This offer of proof was excluded, by the judge of the municipal court, and the defendant excepted.

It is claimed, on the part of the defendant, that the circumstances of the conversation amounted to a waiver of the written notice, and that the defendant’s oral statement of his intention to keep the premises for two years more was accepted by the plaintiff in place of a notice in writing, and that the defendant having in consequence omitted to serve the written notice, the plaintiff is now estopped, and the defendant has a right to the possession for two years more, by the force of the original written lease.

It is said that the plaintiff, having put the defendant off his guard until the time for him to give the written notice had gone cy, should now be estopped, denying that he had received due notice. But that sort of reason might be assigned in almost every case where a defendant seeks to evade a written agreement by showing a paroi alteration of its terms. It frequently happens that a party claims that an understanding was entered into subsequent to the execution of the contract, that some covenant should be dispensed with, but the courts do not hear evidence in support of such a claim unless the understanding was entered into upon some new consideration.

The stipulation in this lease that the tenant could have a further term of two years by giving a notice in writing, was, to the landlord, a very material provision. In letting the premises for one year the landlord saw fit to put the contract in writing, under seal, that the terms of the contract might not be disputed; but whether he has not let his premises for a further term of two years, upon the doctrine of the defendant’s counsel, he must find out in court by a contest depending on oral and conflicting statements. If written notice had been served upon the landlord his contract for the extended term would have been in writing, while without it the tenant could at any time dispute the renewal.

In this case the alleged conversation was about the 1st of March. There was nothing to waive, as the tenant was in no default, having until the 1st day of April to serve the' written notice. The attempt plainly was to change the provision of the sealed instrument by paroi evidence of a waiver, before there was any breach, showing no new con sideration or substituted valid agreement. The cases apply which hold that paroi evidence is not admissible to show that before a breach there was a paroi modification of a. contract which is under seal. Delacroix v. Bulkley, 13 Wend., 71; Allen v. Jaquish, 21 id., 628; French v. New, 28 N. Y., 147.

In the case of Beller v. Robinson (50 Mich., 264), where the written instrument of lease was under Seal and provided for an extended term upon written notice, it was held that paroi evidence of a renewal was not admissible.. There the landlord tried to hold the tenant upon paroi evidence of his election to take the premises for the extended term. The lease provided for a further term of three years, the tenant held over and paid the rent for the period of a year, which was accepted by the landlord without protest, and then the tenant quit. It was held that the landlord could not recover subsequently accruing rent, and that paroi evidence of a waiver of the written notice was not admissible. It was also held that to make the extended term of two years depend upon an oral conversation betweeil the landlord and tenant or a waiver implied from the acts and conduct of the parties, was an evasion or violation of the statute of frauds,- which makes void all leases for more than one year which are not in writing. In the case at bar if the, defendant had served a written notice of his election to take the premises for another term of two years, the entire contract would have been in writing as required by the statute,

For these reasons I think the judgment of the municipal court ought to be affirmed.  