
    Samuel Roseff, Appellant, v. Helen A. Beals, Respondent.
    Second Department,
    February 1, 1918.
    Landlord and tenant — action for rent — oral agreement of landlord to make improvements — erroneous charge.
    Where a landlord sues to recover rent and the tenant defends on the ground that there was an oral agreement contemporaneous with the lease that, it was not to take effect until the landlord had made certain improvements, it was error for the court to refuse to charge that if the repairs were to be made during the term of the lease the jury must not consider the evidence as to the oral agreement, there being proof which made the request to charge germane.
    Appeal by the plaintiff, Samuel Roseff, from a judgment of the City Court of Mount Vernon in favor of the defendant, entered in the office of the clerk of the City Court of Mount Vernon on the 23d day of February, 1917, dismissing the complaint on the merits upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.
    
      Stephen Holden [James H. Cavanaugh with him on the brief], for the appellant.
    
      J. E. Quinn, for the respondent.
   Jenks, P. J.:

In this action by a landlord to recover rent under a written lease, the defendant pleaded inter alia that prior to and at the time of the making of the written agreement of lease the parties further covenanted and agreed that said lease should not take effect or be in force until the plaintiff should install an adequate heating apparatus in the dwelling house on said premises and make other repairs to the premises, particularly to the roof and to the plumbing system. The lease was silent on this matter. The jury returned a general verdict for the defendant.

The learned court refused under exception to charge the jury that if the repairs alleged to be made to the plumbing, to the roof, and installation of the new heating system, were to be made during the term of the lease, they must not consider the evidence as to the oral agreement. There was proof that made the request germane. I think that the exception was well taken. (Greene v. Ker, 48 Misc. Rep. 609, citing Hall v. Beston, 16 id. 528; 26 App. Div. 105; affd., 165 N. Y. 632, on opinions below.)

The judgment and order of the City Court of Mount Vernon should be reversed and a new trial ordered, costs to abide the event.

Thomas, Putnam, Blackmar and Kelly, JJ., concurred.

Judgment and order of the City Court of Mount Vernon reversed and new trial ordered, costs to abide the event.  