
    Selig Steinhardt, Resp’t, v. Oliver P. Buel, App’lt.
    
      (New York, Common Pleas, General Term,
    
    
      Filed November 7, 1892.)
    
    1. Lease—Renewal.
    Plaintiff being a tenant of defendant’s flat under a yearly hiring, the-parties entered into negotiations for a renewal which terminated in an agreement by which plaintiff was to make certain repairs and supply an additional room, and defendant, “such being the case,” agreed to take the-flat for another year. Nothing was said as to the amount of rent. Defendant afterwards refused to sign a lease and moved out. Held, that in the absence of an agreement as to the rent, no inference was authorized that it was to be the same as before, because the premises let were not the-same, and that the agreement was incomplete and inoperative.
    
      2. Same—Evidence.
    In such action evidence on the part of the landlord that it was intended to give the extra room gratis is inadmissible, because such fact was not communicated to the tenant; the secret, undisclosed intention of one party not being admissible to affect the other with liability.
    Appeal from judgment of the general term of the city court of New York, affirming, a judgment on a verdict in favor of plaintiff.
    Action to recover rent of premises under an alleged oral renewal of lease, defendant having moved out before the commencement thereof.
    
      Jacob Steinhardt, for resp’t; G. M. Harwood, for app’lt.
   Pryor, J.

As to every question submitted to the jury upon conflicting evidence we are concluded by the verdict in the court below; and unless the record discloses some error of law in the disposition of the case, we have no alternative but to affirm the judgment.

At the close of the evidence the learned counsel for the appellant moved the court to direct a verdict in his favor upon the grounds: First, that the proof was insufficient to establish an agreement of any kind between the parties; and, secondly, because if any contract was shown, it was not a present demise, but an executory agreement for a future lease. To the denial of the motion due exception was taken. After verdict appellant moved for a new trial, because the verdict was against the law, and upon all the grounds in § 999 of the Code. To the denial of this motion also due exception was taken.

To the constitution of a contract it is an indispensable condition that the minds of the parties concur upon every material term of the proposed agreement. Justice v. Lang, 42 N. Y., 494; The Trustees v. Insurance Co., 28 N. Y., 153. Hence, there is no-contract “ unless the minds of the parties meet and fix a price.” Booth v. Pierce, 38 N. Y., 463, 466; McCotter v. The Mayor, 37 N. Y., 325.

In August, 1890, appellant being tenant of respondent’s flat until 1st October, the parties negotiated for a renewal of the lease for another year. The treaty terminated in an agreement, on the part of the respondent that he would make certain repairs and supply an additional room, and on the part of the appellant “ that, such being the case, he would take the flat for another year.” Respondent made the repairs and tendered the additional room; nevertheless, appellant refused to execute the lease. But, for the flat so repaired and enlarged, no price was stipulated or suggested even by the parties p nor was it intimated to appellant that he was to have the repairs and additional room as a gratuity. Respondent’s witness testified explicitly, that nothing was said on the subject of price or compensation for the succeeding year. In the absence of an agreement as to the rent, no inference is authorized-that it was to be the same as before ; because, the premises let were not the same, but were altered by repairs and enlarged by additions.

“ If there has been no absolute agreement made as to all the particulars of the lease, if the minds of the parties have not met as to all these particulars, there is no agreement on which an- : action will lie.” Sourwine v. Truscott, 17 Hun, 432, 434.

It results that the alleged agreement was incomplete and inoperative.

Respondent’s proposition, that his repairs and additions to the premises, made on the strength of appellant’s promise to take the lease, operate an estoppel to contest the efficacy of the promise as a legal obligation, is without shadow of support either in principle or authority. White v. Ashton, 51 N. Y., 280. The case-cited, Mayor v. Huntington, 114 N. Y., 631; 23 St. Rep., 912, is but an application of the familiar rule that a tenant in possession is estopped to dispute the validity oí the contract under which he acquired possession.

As there was no evidence to warrant the verdict, it follows that the court erred in denying the motions for a direction and for a new trial.

_ Another error still vitiates the judgment. ■ Plaintiff inquired of •his witness “ Why wasn-’t this extra room mentioned in the lease-? ” Defendant objected to the question, but it was allowed, and defendant excepted. The answer being, “ Because it was intended to give it gratis,” defendant moved to strike it out, and to a denial of the motion duly excepted. As seeming to show an agreement about price, and so validating the contract, the 'answer might have been of momentous materiality in the minds of the jury. But it was not legal evidence; because whether- the additional room was tp be gratuitous had not been communicated to the defendant; and indisputably the secret; undisclosed intention of one party is not admissible to affect the other with liability. . The evidence being essentially and irremediably incompetent, no specific objection is necessary to subject it to our revision. Quinby v. Strauss, 90 N. Y., 604; Tooley v. Bacon, 70 id., 34; Merritt v. Seaman, 6 id., 168.

The learned counsel for appellant maintains that, in any aspect ■of the case, the contract in controversy is but an executory agreement for a lease, and so is incapable of sustaining the present action. We incline to the opinion that the position is tenable ; but we need not adjudicate the point, since, in any even,t, the o judgment must be reversed.

Judgment reversed and a new trial ordered, costs to abide event.

Bookstaver and Bischoff, JJ., concur.  