
    Victor Steiner, Appellant, v. Myer Hellman, Respondent.
    
      Contract —failure to prove a writings the Statute of Frauds must he pleaded.
    
    In an action brought to compel the specific perf ormanceof a written contract for a. lease of real property for three years, the plaintiff failed to prove the written contract covering the whole matter as alleged in tile complaint, and, without asking leave to amend his complaint so as to, allege a contract partly oral and .partly written, gave proof to that effect.
    
      Meld, that the plaintiff was not entitled to any relief;
    
      That an amendment was necessary, and, if made, would have entitled the defendant to interpose the defense of the Statute of Frauds — a defense which must he pleaded.
    Appeal by the plaintiff, Victor Steiner, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of February, 1896, upon the decision of the court rendered after a trial at the New York Special Term, dismissing the .complaint upon the merits.
    The action was brought to compel the specific performance of a written contract for a lease of real property. The complaint alleged a written contract for a lease of the ground floor and basement of a building for the term of three years. No such contract was proved on the trial. The only writing given in evidence was a receipt signed by the defendant for twenty-five dollars paid by plaintiff ■“ as a deposit on account for store * * * said amount to be credited to May rent. Said rent to be seventy dollars per month in advance from May 1, 1895.” No term was specified, nor was any agreement to give a written lease mentioned. Both parties gave parol evidence as to what took place with reference to the leasing of the property, what the term was to be, and whether an additional floor of the building was finally agreed to be included in the property to be leased. Plaintiff took possession of the two floors and basement and occupied them. A lease of the whole for the term of three years was made out and sent by the defendant to plaintiff with the request that he execute and return the duplicate. Plaintiff refused to accept such lease, or to sign and return the duplicate, and the lease was finally returned to the defendant. The plaintiff claimed he should have a lease of the ground floor and basement alone for three years, and that he was to lease the other floor for no particular term. The defendant claimed the plaintiff was to lease the whole together for the three years. It was not claimed that this agreement was perfected at the time the receipt for the twenty-five dollars was given, but that no term was then agreed upon as to the store, and that by an agreement entered into after that the basement and first and second floors were to be leased together for three years. The court denied the plaintiff the relief asked for.
    
      
      George C. Coffin, for the appellant.
    
      William C. Wolf, for the respondent.
   Williams, J.:

We see no reason to disturb the judgment entered upon the decision of the trial court. The plaintiff entirely failed to establish a written contract for a three years’ lease as alleged in his complaint. There was no amendment made to the complaint so as to allege a contract resting partly in writing and partly in parol, which was sought to be enforced, and without stich amendment the plaintiff certainly could not have had the relief asked for. If such amendment had been made, the defendant would have had the right to answer such amended complaint, and could then have interposed the defense of the Statute of Frauds which the Court of Appeals seems to have held must be pleaded in order to be taken advantage of.

The court took all the evidence, however, and then determined the case upon the facts, holding that even considering the parol evidence there was no contract for a lease for three years of the basement and first floor alone so satisfactorily shown as to authorize the court to compel specific performance thereof. The evidence was conflicting, and considering the parol evidence and the documentary evidence appearing in the record together, .we quite agree with the learned trial judge, that the. plaintiff did not make a case enth tling him to the relief sought.

The judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  