#### Abner S. Haight, as Trustee in Bankruptcy of Hirschmann Brothers, Bankrupt, Respondent, *v.*Isaac Cohen, Appellant.

Second Department,

January 24, 1908.

Evidence — landlord and tenant — parol agreement subsequent to written lease — consideration for agreement reducing rent.

In an action to recover rent reserved in a written lease the tenant may show that subsequent to the execution of the lease and before the beginning of his term the rent was reduced by an oral agreement in consideration of improvements made by him.

Although the lease required the tenant to make necessary repairs during the term, an agreement to reduce the rent because of improvements made by him prior to the term is founded upon a good consideration.

Appeal by the defendant, Isaac Cohen, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 16th day of July, 1907. •

*Benjamin*Reass, for the appellant.

*Theodore B. Richter [Julius Henry Cohen*with him on the brief], for the respondent.

Hooker, J.:

The action is for rent. The lease, made seven or eight months before the term was to begin, was in writing, and provided, among other things, that the annual rental should, be $2,700, and that “ the tenant shall take good care of the premises and make all necessary inside and outside repairs thereto at his own cost and expense, and at the end or other expiration of the said term shall deliver up the demised premises in good order or condition, damages by the elements excepted.” Upon the trial the defendant offered to show *708that prior to the time he was to enter into possession of the premises he had a talk with the then owners, in which he found fault with ' the condition of the premises and with the fact that a so-cal'led violation had been filed against them in the tenement house department, and that the defendant and the lessors agreed together that if the defendant would make repairs necessary to put the premises in good condition, and would cause the said violation to be removed, the annual rental should be reduced from $2,700 to $2,500; and the defendant did so. It does not appear in so many words that this oral agreement was made subsequent to the written lease ; but the only fair interpretation of the language of the offer is that such . was the case, .for the parties would not have been arranging for an annual rental different from that mentioned in the lease until after the lease itself had been made. The offer was rejected and the evidence excluded. This was error for which the judgment should be reversed. The trial court excluded the evidence on the theory that it was an offer to vary by parol the terms of a written contract. This is not such a case. The. arrangement being subsequent to the written contract, it was perfectly competent for the parties to make a contract either in parol or in writing which should supersede the . lease, either in part or in whole. The defendant claimed that the lessor agreed before the lease was made that the premises, the subject of the lease, should be in good condition and not incumbered with any so-called violations. Consideration for such subsequent agreement is to be found in the circumstance that the defendant was to make repairs before the term commenced and remove the violations that then existed, which by the terms of the written lease he was not required to do, for the lease itself dealt only with the defendant’s obligation in these respects during the term..

The judgment must, therefore, be reversed and a .new trial ordered.

Jehks, GIatkob, Rich and Milleb, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.