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.