The issue raised by the answer was the existence of an independent agreement for repairs prior to taking possession, in reliance upon which defendant signed the lease, and that, by reason of plaintiff’s failure to perform such agreement, defendant did not take possession *25and Ms liability ceased. The learned trial justice excluded evidence tending to show the conditions precedent of such agreement and its ratification by one of plaintiff’s officers. It is clear that the landlord promised to make these repairs prior to the execution of the lease, and testimony should have been allowed for submission to the jury, whether or not the execution of the lease was conditioned upon the repairs being made forthwith and before defendant should take possession; for the lease is silent on the subject of repairs. This silence, ordinarily, would impose upon the tenant the obligation to repair; but this very matter, in part at least, was the subject of an alleged independent collateral agreement, affecting the consideration for the lease itself. It seems to me that Chapin v. Dobson, 78 N. Y. 74 and Clenighan v. McFarland, 11 N. Y. Supp. 719 apply, in principle, to the facts at bar. Daly v. Piza, 105 App. Div. 496 involved- a complete lease containing an express undertaking by a lesseg to make repairs.
The judgment should be reversed and a new trial granted, with costs.
Judgment affirmed, with costs.