Kirtland v. Schanck

By the Court, Ingraham, P. J.

The findings of fact on the dismissal of the complaint are not material. The real question is, whether the evidence was sufficient to sustain the action. It is not, therefore, necessary0to inquire whether those findings were in accordance with the evidence.

• The ground on which the plaintiff seeks to recover is, that there was a verbal agreement, between the parties, that the new lease to be given should be at one half the rent the defendants were to pay for the whole of the store. That when the lease was to be executed, the defendants represented that they had to pay more rent than was expected, and thereby induced the plaintiffs to sign the lease for a larger sum than one half of the rent of the whole building.

[First Department, General Term, at New York, January 1, 1872.

If these statements are true, there would be sufficient to - warrant the court to reform the lease; or, at any rate, to relieve the plaintiffs from the obligation to pay more than half of the entire rent.

The státute of frauds is not applicable to such a case. It would be, if the defendants had refused to give a lease to the plaintiff, according to the agreement. But where the allegation is that the lease was obtained by fraudulent representations, and was executed under misstatements of the defendants, the agreement by parol would be sufficient to maintain the cause of action.

The judgment should be reversed, and a new trial ordered ; costs to abide th'e event.

Hew trial granted.

Ingraham, P. J., and Cardozo, Justice.]