
    The Mayor, Aldermen and Commonalty of the City of New York, Resp’ts. v. Alexander Mason et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887.)
    
    1. Sale—Purchase at sale on terms—Waiter of prior agreements.
    When a party bids at a sale at which the terms are announced it will be construed to be a waiver of a prior agreement as to particular terms not included in those announced
    3. Evidence—Leases—Merger in of all prior oral understandings BETWEEN THE PARTIES.
    When a person accepts a lease he will he prevented from disputing the same, on the ground that it does not contain prior agreements, by reason of the well settled rule that when a written agreement is entered into, the whole contract is embraced therein, all prior and contemporaneous negotiations and oral promises in relation to the subject matter are merged in the written agreement and the rights of the parties defined by its terms.
    In March 1815,' the department of docks, acting in behalf of the plaintiffs, advertised for sale certain leases of piers belonging to the plaintiffs for three years from May 1, 1815, which advertisement stated that the terms and conditions of sale would be stated by the auctioneer at the time of sale
    It is claimed by the defendants that upon application to the officers of said department, said piers being out of repair at one time, they promised to put the piers in tenantable condition provided the defendants would bid on them, and that the said officers said that the defendants could bid on them with safety as far as that was concerned, and that at others both prior and after the sale, they promised that the pier should be put into proper condition and with a sufficient depth of water for the use of the defendants, which is generally considered to be ten feet at low water.
    Terms of sale were adopted by the dock department which were read at the sale as announced in said advertisement, which among other things provided as follows:
    “The usual form of printed leases adopted by the department containing a clause requiring the lessee to keep the surface mooring, piles, string pieces in safe and proper repairs, and the steps adjacent to the premises dredged to proper depth of water during the term of the lease, to be signed by the lessee when notified that the same is ready for execution. Such dredging as may be necessary to give a depth of ten feet at low water will be performed by the department of docks as soon as possible after the execution of the lease.”
    ‘ ‘ The premises to be taken in the condition they are in on the 1st of May next. ”
    The defendants Mason and Foster bid for said leases, and they were knocked down to them, and they went into possession on May 1st, 1875, although they bad received no leases, nor had the dredging been done to give ten feet of water at low tide.
    In or about August, 1875, leases were exchanged between the parties, which leases contained the following provisions :
    “And the said parties of the second part, for themselves and their heirs, executors, administrators and assigns, do further covenant and agree to, and with the said parties of the first part, their successors and assigns, that they, the said parties of the second part, their heirs, executors, administrators and assigns, shall and will at all times, and at their own expenses, keep the slip hereby granted dredged, and will keep, put and maintain all the premises granted hereby in good and sufficient repair and condition, and in case the said parties of the second part make default therein, and continue in such default for the space of ten days after notice to make such repairs given by the department of docks, or any proper person or officer, the said parties of the first part, their successors or assigns, may make such repairs, and the full cost and expense of the same shall and will be paid on demand, by the said parties of the second part to the said parties of the first part, their successors and assigns.”
    And it was also covenanted, as follows :
    “And it is hereby declared by the parties to these presents, that no deduction from said rent shall be made by reason of such repairs of said premises, or any occurrence whatsoever whicb may happen during the time hereinbefore mentioned, except as herein stated.”
    The defendants remained in possession and paid their rent, except for the last quarter, which they refused to pay, and this action was brought to recover the same.
    The defendants for answer allege the facts aforesaid, and that the leases do not truthfully set forth the agreement between the parties, inasmuch as they do not obtain covenants that the plaintiffs should repair the piers, and dredge the slip adjacent thereto, and that such covenants were inadvertently omitted from such leases, and that by reason of the breach of this agreement they have suffered great-damage.
    Upon the trial by the court without a jury, judgment was rendered for plaintiffs, and from such judgment appeal is taken.
    
      A. J Ditierihoefer, fordef’tsand app’lts; David J. Dean, for pl’ffs and respt’s.
   Van Brunt, P. J.

The learned justice before whom this-case was tried, refuses to find that the leases as executed, did not truthfully or correctly set forth the agreement between the parties thereto, or that the covenants as to-dredging and repairs were unintentionally and inadvertently omitted therefrom, or that said instrument did not-correctly express the agreement of the parties thereto, and found as matter of fact said leases were duly executed;, therefore, unless it can be shown with reasonable clearness that these findings were erroneous, the judgment cannot be disturbed.

The talks which the defendants had with the dock commissioners have no relevancy to this controversy because-the dock commissioners could make no private arrangement with the defendants as to what they would or would, not do with the piers.

The leases were to be sold at public auction, terms of sale were to be and were announced by the auctioneers, and if any binding representations were made, they were contained in the terms of sale.

The terms of sale provide that the usual form of lease-was to be executed, they then said that dredging to the-depth of ten feet was to be done by the department, but that the premises were to be taken in the condition they were' in on the first of May next after the sale, the date-when the term of the lease was to commence.

From these terms it is clear that it was not intended that there should be any dispute as to the fulfillment of the dredging condition after the lessee went into possession on May first. If the lessee went into possession then, although the dredging had not been done contemplated by the terms of sale; such taking possession was a waiver of that condition as the premises were to be taken in the-condition that they were in on May first.

In the case at bar no lease being executed, the failure to-dredge might well have been a good reason for refusal to take possession on May first, and subsequently to execute the lease, but the lessees having taken possession cannot-now defend upon the ground that the dredging has not been done, having gone into and remained in possession during their whole term.

But there is additional evidence of waiver which is conclusive upon the defendants in this case.

Subsequent to May first, and while in possession of these piers the defendants executed a lease to these plaintiffs which contains no covenants whatever.

It is a well-settled rule of law that where parties enter into a written agreement respecting any subject, it is presumed that the whole contract between the parties is embraced therein; that all prior and contemporaneous negotiations and oral promises hr relation to the subject-matter are merged in the written agreement and the rights of the parties are defined by the terms of the agreement.

In the case of Wilson v. Deen (74 N. Y., 534), where an action was brought by a lessee against the lessor of certain premises to obtain a cancellation of a léase and relief from its obligations upon the ground that certain promises in relation to repairs and furnishing of the premises had not been complied with and where a judgment was given in favor of the plaintiff in the court below, the court of appeals say:

‘‘We think it impossible to sustain these conclusions without disregarding the established rule of law, that a written contract merges all prior and contemporaneous negotiations and oral promises in reference to the same subject, and that when the terms of a lease are in writing the rights and duties of the parties depend upon the terms or legal intendment of the lease itself, or as otherwise ex pressed, that it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking are embraced in the writing.

“ This rule has been repeatedly applied to cases like the present, where the tenants have set up oral agreements or promises alleged to have been made by the landlord at the time of, or before, the execution of the lease, and as an inducement thereto. The alleged promises have, in most of the cases, been to put the premises in repair, but they have uniformly been held tq have been merged in the lease ” Cleves v. Willoughby, 7 Will. 83; Speckels v Sax, 1 E D. Smith, 253; Hartford Steamboat Co v The Mayor, 78 N Y., 1; Rilley v. City of Brooklyn 46 id 444

In Hartford Steamboat Co. v The Mayor (supra), the controversy arose upon a lease precisely the same in form as that in the case at bar.

The court there say:

‘ ‘ The allegations that the plaintiff entered into the said, agreement upon the representation that substantial repairs would be made by the,defendant upon the pier, etc., adds no strength to the plaintiff’s case. Such representations could not vary or add to the terms of the written agreement, but were merged in it. The case must depend upon the construction of the written instrument.”

There is no evidence whatever to support the claim that the clause in respect to the plaintiff’s dredging was unintentionally or inadvertently omitted from the lease.

The usual form of lease was to be and was given, and such usual form contains no. such clause, and in none of the evidence does any witness swear that any such provision was to be inserted in the lease, and even if there was enough evidence to support such a finding, if made, there is ample evidence to sustain the refusal made by the learned court.

The claim is now made, which does not seem to have been advanced upon the trial of this cause, that this agreement may be enforced as an independent agreement, and certain English cases are cited to support the proposition.

It is doubtful whether under the pleadings or" the requests to find, such a question can be raised, there being-no appropriate allegations in the answer or claims made in the requests to find.

The defendants evidently proceeded at the trial upon the ground of reformation, and not upon an independent agreement. But whether this be so or not, by the terms of sale the lessees agreed to take the premises as they were on May first, and by going into possession on May first, and subsequently taking a lease, they waived the agreement to dredge, if such an agreement existed.

In the case of Hartford Steamboat Company v. Mayor (supra) it was distinctly held that promises to make repairs were merged in the written contract, and such contract must govern.

. The judgment appealed from must be affirmed, with costs.

Daniels and Brady, JJ. concur.  