#### KAVEN v. CHRYSTIE.

(Supreme Court, Appellate Term.

November 6, 1903.)

1. Landlord and Tenant—Lease under Seal—Effect—Variance by Parol.

The legal effect of a written lease under seal cannot be destroyed by testimony of an oral agreement that the tenant might occupy the building rent free until it was torn down.

3. Same—Agreement fob Free Occupancy—Want of Consideration — Uncertainty.

An agreement that a tenant in possession of premises under a written lease, binding him to pay a fixed rent, “might occupy the building rent free until it was torn down,” was void for uncertainty and want of consideration.

Appeal from Municipal Court, Borough of Manhattan, Sixth District.

Proceeding to.recover possession of demised premises, for nonpayment of rent, by Gustavus A. Kaven against Jennie J. Chrystie. From a judgment of dismissal, plaintiff landlord appeals. Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

John McCormick, for appellant.

C. E. Travis, for respondent.

FREEDMAN, P. J.

The material facts in this case are as follows : The landlord herein became the owner of certain premises in this city in November, 1902. At that time the premises were in possession of the defendant, who had a lease for three years from November 1, 1900, by the terms of which she was obliged'to pay a rental of $300 a month. The premises had been purchased for the landlord by Smith & Hume, brokers, with the expectation of being sold again. Smith & Hume were endeavoring to find a purchaser for the property, and the defendant, who was also desirous of selling her lease, had been assured by either Smith or Hume that, in the event of a sale of the property by them for Kaven, they would purchase her lease. They had also assured her that, in their belief, Kaven would not require her to pay rent for the premises pending an effort to sell, but that when her lease was purchased the amount of rent due from her would be deducted from the purchase price of the lease. Kaven also admits that he had tacitly consented to this arrangement. The defendant paid no rent for the months of November and December, 1902, and for January, February, and March, 1903,- and on March 9, 1903, these proceedings were commenced.

There is nothing in the case going to show that there was a valid agreement relieving the defendant from payment of rent. Neither Smith" nor Hume testifies to any such agreement. Hume swears, “I told her I did not think she would have any trouble until Mr. Kaven soldand Smith testifies that the defendant asked, “Can’t I get some free rent?” and I said, “If possible, I will get you some.” Upon the testimony of the defendant and her daughter to the effect that Smith agreed with the defendant that “she might occupy the building rent free until it was torn down,” the proceeding was dismissed by the trial *471judge. We are asked to hold that this testimony is sufficient to destroy the legal effect of a written lease executed by the defendant under seal. This cannot be done. McKenzie v. Harrison, 120 N. Y. 260, 24 N. E. 458, 8 L. R. A. 257,17 Am. St. Rep. 638; Coe v. Hobby, 72 N. Y. 141, 28 Am. Rep. 120. The agreement made by Smith, if one was made to allow the defendant to remain upon the premises “until the building was torn down,” was void for uncertainty, and without consideration.

Final order reversed. New' trial ordered, with costs to the appellant to abide the event. All concur.