
    Sol L. Kaye, Appellant, v. David I. Hoage, Respondent.
    (Supreme Court, Appellate Term,
    May, 1909.)
    Consideration — Consideration for particular agreements — Consideration for agreement to relinquish rights under contract. Landlord and tenant — Leases and agreements in general — Requisites and validity — Modification of lease.
    The promise of a landlord to a tenant who threatens to abandon demised premises unless the landlord makes certain repairs which he is not legally bound to make, that if the tenant remains and makes the repairs he will give him the rent for the last three months of the term for nothing, is without consideration and not enforcible.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, seventh district, borough of Manhattan, rendered in favor of the defendant.
    Benjamin M. Kaye, for appellant.
    John N. Griggs, for respondent.
   Lehman, J.

The defendant leased a private house from May 1, 1908, to May 1, 1909, at a rental of sixty dollars per month. The house was purchased by the plaintiff from the lessor who assigned the lease to him. On the 20th of February^ 1909, the plaintiff demanded the February rent from the defendant and, upon his refusal to pay, has brought this action. The defense is that, when the plaintiff bought the house in July, his son and representative saw the defendant who said that the house was untenantable and that he was going to move out, and the plaintiff’s representative then said that he would allow him to make the repairs and he would “ give him the last three months of the year for nothing.”

The trial justice, thereupon, in spite of the denial of this conversation by the plaintiff’s representative, gave judgment for the defendant.

Since the defendant was obliged to pay the rent under his contract with the plaintiff’s assignor, this defense is not valid, unless the conversation between the parties constituted a binding contract, or a binding gift of, at least, the February rent. It was no contract, because there was no consideration. The defendant could not leave the premises on the ground that their bad repair constituted a constructive eviction, because an eviction can arise only through the affirmative act or default of the landlord and, under his contract, the landlord was not obliged to make repairs. The defendant could not refuse to attorn to the plaintiff, because no attornment is now necessary between the grantee of the landlord and the lessee. The defendant did not agree to do anything not required by ¡his own contract with the landlord; he did not agree to make any.repairs; he did not agree to remain in personal possession of the premises; he at most agreed not to abandon a lease which he had no legal right to abandon under the circumstances. The contract could not even be supported as a unilateral contract that, if he would remain in actual possession of the premises, the rent for the last three months would be remitted, because it appears that he left the premises on March third.

The defendant also claims that, if the remission of the rent constituted no contract, it was binding as an executed gift. In the case of McKenzie v. Harrison, 120 N. Y. 260, it was held that, where the landlord agreed to reduce the rent of premises, the acceptance of the reduced rent in any month constituted a valid gift of the amount of the rent remitted. In that case, however, the gift of each month’s rent reduction was through an affirmative and complete act of the landlord. Here, the landlord, at most, has promised to make a gift; and such a promise cannot be enforced.

Judgment should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

Dayton and Seabuby, JJ., concur in the result.

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