David Stevenson Brewing Co. v. Junction Realty Co.

Scott, J.: The evidence is by no means satisfactory that the written agreement to reduce the rent was accompanied by an oral condition which, being unfulfilled, rendered it inoperative. The [272] question is not important, however, because, for other reasons, the judgment appealed from is right. The lease was under seal, the agreement to reduce the rent was not. It is settled law that a contract or covenant under seal cannot be modified by a parol unexecuted agreement. (McKenzie v. Harrison, 120 N. Y. 260.) In this case the agreement to reduce the rent was never executed, in the sense in which that word is used in the statement of the rule, because it was never carried out. As was said in a recent case: ‘ ‘ While the agreement to reduce the rent remained unexecuted, it was void and inoperative. The lessors had the right to repudiate it at any time and demand the full amount of rent provided for in the lease.” (Zindler v. Levitt, 132 App. Div. 397.) ■ Furthermore, if a valid modification of the lease had" been made, the plaintiff could have raised the question as to the amount of' rent due in the Municipal Court under section 2244 of the Code of Civil Procedure as it now stands, and, therefore, a resort to equity was unnecessary. The decision contains two conclusions of law (second and third) declaring what was the duty of the plaintiff with respect to the orders issued by the bureau of buildings and the tenement house department, and also declaring what rights accrued thereunder to the landlord. The case presented no issue regarding those matters which it Was necessary to decide, and it was improper to include these conclusions of law in the decision, since they might embarrass the plaintiff in other litigation in which the question might be involved. . To insure that no such result ' will follow, the judgment will be modified by striking out the words “ upon the merits,” leaving the judgment a mere dismissal of the complaint, and as so modified it will be affirmed, with costs. Ingraham, P. J., McLaughlin and Clarke, JJ., concurred; Laughlin, J., dissented.