
    William Tunbridge, Resp’t, v. Cassius H. Read et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    1. Landlord and tenant—Lease—Admission op evidence—Error.
    Where in an action to recover rent under a lease the complaint alleg d full performance of the conditions, the admission of evidence over the objection and exception of the defendants to show a variation from the stipulations and covenants is erroneous and cannot be cured by amendment upon the.motion for a new trial on the minutes.
    2. Same—Lease taken to embody final agreement.
    Where parties reach an agreement which is embodied in a written instrument duly executed, it must be taken as the final agreement of the-parties made, without reference to any preliminary conversations or undertakings.
    3. Same—Waiver of precedent conditions—Evidence—Agency.
    The plaintiff claimed a waiver of performance of certain conditions precedent relating to improvements to be made by him, by one McMahon, as agent of the defendants, and to that end gave testimony to the effect, that the defendants had said that McMahon would look after the work, and he (plaintiff) should take his instructions from him. Held, insufficient to establish an agency on the part of McMahon for the variation or waiver of the covenants, and that a submission of the question to the jury was erroneous.
    4. Same—When performance of condition, precedent to obligation
    TO PAY RENT.
    Where a lease contains covenants for the performance of precedent conditions on the part of the lessor and there is no waiver of them, the law requires their performance as a condition to the obligation of a lessee to. accept the premises' and pay the rent.
    5. Same—Acceptance—Waiver.
    Where possession of demised premises was never delivered to the lessees,, or to any one authorized to receive and accept them, and they never assumed control over them, Held, no acceptance of the premises to constitute a waiver of performance of precedent conditions.
    6. Same — What vigilance to ascertain failure op conditions re-
    quired.
    Where the duty of performance of precedent conditions is imposed upon the lessor before any rights accrue to him, the lessees are not called upon for the exercise of any active vigilance to ascertain his failure.
    Appeal from a judgment entered upon the verdict of a jury, and from an order of" the special term, denying a. motion for a new trial, and amending the pleadings.
    
      Christopher Fine (Esek Cowen, of counsel), for app’lts; Brewster Kissam, for resp’t.
   Dykman, J.

—On the 14th day of August, 1883, the-plaintiff in this action executed to the defendants a written lease for the basement of the building known as No. 9 Beaver street, in the city of New York, for five years from. November 1, 1883, for the yearly rent of $4,000, payable^ quarterly.

The lease also contained the following stipulations:

“And the said party of the first part hereby further-agrees, as soon as practical and before the commencement, of said term, to build two or more lath and plaster partitions in said basement, dividing the same into three apartments, each to be fitted up with suitable gas fixtures and. wash hand basins, and to warm the same apartments with steam heat during the term of this lease, and to have said, three rooms connecting by doors, if so required by the-parties of the second part. To build two water closets and' two urinals in the rear part of said basement; to build a. wide iron stairway, leading to the front part of said basement, on Beaver street side, and to erect a wood and glass partition from the Beaver street front of said basement to the rear part of said building, and extending to the basement entrance on New street, leaving the passageway or thoroughfare seven feet wide from the Beaver street entrance to said New street entrance; the said passageway to be used in common as an entrance to and from said building, and to be lighted by the party of the first part at his-own expense.”

Then the lessees agreed to pay the lessor $1,000 towards-the costs of such improvements, and the money was paid at the execution of the lease.

In February, 1884, the lessees refused to take the premises, and this action was then commenced for the recovery of the rent for the first quarter, under the lease.

The complaint set up the lease, and then alleged full performance of all the conditions of the lease on the part of' the plaintiff.

The first trial resulted in a verdict and judgment for the-plaintiff, which was affirmed by the general term (see 38 Hun, 643 mem., but reversed by the court of appeals. 15 N. Y., State Rep., 495.

The court of appeals decided that the failure to comply-with the stipulations and perform the covenants contained in the lease would absolve the defendants from all obligations to take possession of the premises or to pay rent upon. failure to occupy the same. The opinion further stated this: “It was not a question to be submitted to the jury as to whether there had been a substantial compliance with the covenants of the lease. The evidence as to the state in which the premises were left by the lessee is so far uncontradicted as to have made it the duty of the court to have directed as a matter of law that the lessor had not in that-respect complied with the covenants of the lease.”

Upon the second trial, under the original pleadings, the-plaintiff was permitted to prove, over the objection and exception of the defendants, the variation from the stipulations-in the lease, and the departure from the covenants pro"viding for the improvements to be made in the demised premises.

The admission of such testimony under the complaint alleging full performance of, and compliance with the contract on the part of the plaintiff was erroneous, and the •error was not, and could not be cured by the amendment •directed by the trial judge upon the motion for a new "trial on the minutes of the court. Southwick v. Bank of Memphis, 61 Howard 170; Day v. New Lots, 107 N. Y., 148; 11 N. Y. State Rep., 361; Romeyn v. Sickles, 108 N. Y., 653; 13 N. Y. State Rep., 864.

The error thus committed requires a new trial, but we place our decision upon broader grounds.

The alterations and preparation of the demised premises required by the covenant of the plaintiff were not made in accordance therewith. So much was substantially conceded upon the trial, and such was the charge of the trial .judge; but the trial proceeded and the recovery was permitted upon the theory of a waiver of performance of the ■conditions precedent, by an agent of the defendants.

Such claim of waiver is found in the testimony of the plaintiff to this effect: He says he had a conversation with the defendant Stokes in the early part of August, before the execution of the lease, in which Stokes stated in substance, that in reference to anything the plaintiff wanted “to know in fitting up the place, he was to consult with McMahon, that Stokes was going to Europe and McMahon was to have charge of the place and rent it for him when it was finished, and that plaintiff should take his instructions as to fitting it up from McMahon, who would look after it for Stokes.

After this interview the parties reached an agreement, and the lease was drawn and executed which embraced the •contract, and provided specially for the improvements to be' made by the plaintiff. This written instrument must be taken as the final agreement of the parties, made without reference to any preliminary conversations or understanding, with the full intention that it should be executed and fulfilled:

The uncon fcradicted testimony both of Stokes and Me-' Mahon is, that McMahon never was the agent of the •defendants in respect to the contemplated improvements, and never was appointed such. He never was clothed with authority to consent to any change or .variations, and the testimony of the plaintiff that the defendant Stokes said, McMahon will look after the work and he should take his instructions from him, is quite _ insufficient to establish an agency for the variation or waiver of the covenants in the lease. The strongest inference justified by the testimony is, that McMahon was to look after the work as it pro- grossed, and the plaintiff was authorized to take instructions from him in respect to the mode and manner or making the improvements called for by the lease, the material to be used, the quality of the workmanship, and all details involved in the progress of the work. In short, McMahon-was to superintend the work and see that it was performed according to the covenants, and not to agree or consent to-failure, variations or non-performance. Any other construction involves the absurdity of a change of a written contract to fit up the demised premises in a manner specified, with great particularity, to a contract to fit up the same according to the instructions of McMahon, and founding such theory upon a preliminary conversation between the parties long before the execution of the written instrument.

We can yield assent to no such construction. The covenants in the lease were made to be executed, and the law required their performance as a condition precedent to the obligation of the defendants to accept the premises and. pay the rent. The agency of McMahon, whatever it was, did not invest him with power to direct the manner of making the improvements. He never was appointed for any such purpose, and the declaration of Stokes to the plaintiff was entirely insufficient to create such an agency. He only said McMahon would have authority to direct the manner of doing the work. Whatever consent was given by McMahon to variations from the covenants was wholly unauthorized and beyond the scope of his powers, and constituted no justification for the failure of the plaintiff to perform his covenants for which he was paid in advance by the defendants.

There was, therefore, no proof of waiver, and the submission of that question to the jury was erroneous. Neither was there sufficient evidence of acceptance of the demised premises to constitute a waiver of the performance of the precedent conditions. The possession of the premises never was delivered to the defendants, and McMahon never was authorized to receive or accept the same for them. It. never was occupied by the defendants, and they never assumed any control over it. While the defendants were required to make objections, and refused to take the place within a reasonable time after they had knowledge of the. failure of the plaintiff to fulfill his covenants, yet -there is no proof of unreasonable delay on their part in that regard. According to the uncontradicted testimony of Stokes, he did not know how the basement had been constructed until the first part of February, and then he refused to have .anything further to do with the premises. He may have been at the place several times, as he was, without making a. careful inspection, for he had a right to rely upon the performance of the covenants, and as that duty was imposed. upon the plaintiff before any rights accrued to him, the defendants were not called upon for the exercise of any active vi "■ anee to ascertain his failure.

e find no reason in fact or in law to permit a recovery on the ground of waiver by acceptance.

We have thus made a full and careful examination of this case, in the light of the decision of the court of appeals, and our conclusion is, that the failure of the plaintiff to make the improvements on the demised premises, in accordance with the requirements of the covenants in his lease, deprives him of any right to recover against these defendants.

The judgment and order denying a motion for a new trial on the minutes should be reversed and a new trial granted, with costs to abide the event.

All concur.  