Dominique v. Connell

DIHKBLSPIEL. J This suit is tasad, on a lease whioh was entered into tetween plaintiff's deceased father and defendant on July 31st. 1919. for a period of 34 months, at $55.00., per month, beglning October, 1st. 1919, and ending September, 19th. 1931. There was a stipulation in said lease that no part of the leased premises should be used for oooking purposes, except the kitohen. that the tenant has sub-leased part of the property, and had also allowed oooking to be done in other rooms than the kitchen. On the trial of the case evidenoe was introduced to the effeot that oooking had been done in other rooms than the kitohen, but there was no evidenoe showing any sub-leasing, therefore, the only issue before the lower Court was as to the merits of the oasp whether there was any violation of the written lease as to allow oooking in other rooms than the kitohen. During the trial of the case oral evidenoe was attempted to be introduced hpsaiMBfc«M«WHae¡ attempting to prove, that the written notice had been waived and that plaintiff consented verbally to a modification of the lease, to the effeot, that oooking oould be done in other parts of the premises in question. This was denied by the lower Court for the reasons stated, by his Honor, the Judge of said Court, to the effect:- "The objection to the testimony is sustained. The object of that question is to prove by the original lessor verbal permission for the violation alleged in the rule and admitted in the answer. The reason for the requirement of the lease that the things therein indicated shall not be done unless written consent be first obtained is clearly for the [556] specifio purpose oí avoiding contentions as to vernal permission, as the rule oí law whioh requites titles to seal estate to be in writing, or the permission to sell a píeos oí real estate to be in writing. Contraots legally entered into have, as between the parties, all the loros and eifeot of law. This oontraot between Dominique and his tenant and between the tenant and Dominique and his suooessors, has all the loroe and effeot of the legislative aot, and where the oontraot whioh is the law between the parties, states that those things shall not be done unless consent thereto be given in writing, it prevents the Court from hearing verbal testimony. I have no more right in this oase, to permit parole testimony than 1 would have to hear it in a oase Involving title to real estate, to permit parole testimony to be offered to prove title." We are satisfied that the learned Judge erred in his ruling, and the law of this oase has not been oorriotly stated by him. " A written oontraot made in the absenoe of statutory provisions requiring a writing oan be modified by a subsequent oral agreement" " The requirements of a written oonsent of the leesor is for his proteotlon alone; he might gibe aoquiesoe the lessee verbal oonsent or merely aeqwiv in the sub-letting of the premises." Trichell vs. Donovan. 138. L. 988. * A stipulation against sub-leasing is for the exclusive benefit of the lessor and no one else oan enforce it." Montecon vs. Faures. 3. L. 43. "It has uniformly been held that the mere aoquiescenae ’of the lessor will suffioe althouh the lease requires his written oonsent." Baudry—Lacantinerle. Louage. Wo. [557] 1117. ( vol. 18. p. 589). And sinos a mars implied consent suffioes, it follows that express consent, orally given, suffices even more. 138 L. 988; 35 Laurent 426, sec. 219. 30 Dalloz Rep. 406 sec. 475; Dalloz Code Annote, Art. 1717, So. 190; 13 Corp. Jur. 593-594, Secs. 609-611. 51 N. Y. Sup. 1; 70 N. Y. Sup. 211; 99 Atlantic 622; 169 Pacific 201. For the reasons herein assigned, it is ordered, adjudged and decreed that this cause be remanded, the judgment appealed from be revered, and the case to be proceeded with in the lower Oourt in aooor-danoe with the views herein expressed and aooording to law. Plaintiff and appellee to pay the costs of this appeal and all other oosts to await final judgment herein. Judgment Reversed-Case Remanded-