If it be assumed that parol evidence of a promise to give the plaintiffs an exclusive privilege was properly received, the record is silent as to the existence of a consideration therefor.
There is nothing to show when the promise was made, whether before the execution of the lease or afterwards. *Page 386 For all that appears, it was merely a voluntary concession, granted as a favor to one who was an actual or prospective tenant, and thus subject to recall.
In such circumstances I find it unnecessary to consider the validity of Penal Law (§ 861) or its application to the case before us.
POUND, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur with CRANE, J.; CARDOZO, Ch. J., concurs in result in memorandum in which all concur.
Ordered accordingly.