#### Nathan Lewis, Individually, and George W. Lewis and Nathan Lewis, as Executors, Etc., of Henry A. Lewis, Deceased, Appellants, v*.*Bridget T. Donohue et al., Respondents.

(Supreme Court, Appellate Term,

May, 1899.)

Landlord and tenant — Part payment oí liquidated claim — Ex- . ception. to' rule — Lease abrogated by executed parol agreement — Eight to open and close.

The rule, that part payment of- a' liquidated claim will not support the creditor’s promise to accept a part in payment of the whole, • ■ does not obtain where the creditor gains an additional benefit, e. g., the possession of premises surrendered'.to him by -his tenant and the latter’s abandonment of the defense of untenantability.

An executed parol agreement may abrogate a written lease,

*515Where a tenant admits all of the allegations of a complaint for rent except those which state that he “ occupied ” and that a sum named is “ due ” for rent, no. material allegations of the complaint can be deemed to have been denied by the answer and hence the tenant has an absolute right to open and close the case.

Abbeai, from a determination of the General Term of the City Court of the city of New York, affirming a judgment rendered at the Trial Term on the verdict of a jury.

Nathan Lewis (Sidney H. Stuart, of counsel), for appellants.

George D. Beattys, for respondents.

Leventritt, J.

The judgment under review was recovered by the defendants in an action instituted against them for rent.

The allegations of the complaint are that in January, 1896, there was executed a written lease for the term of fifteen months commencing the 1st day of February, 1896, at a stipulated annual rental payable in equal monthly installments in advance; that the defendants took possession of the premises “ and occupied the same; ” that they defaulted in the payment of the rent for the month of May, 1896, amounting to $91.67, “ which is now due these plaintiffs for rent of said premises for the month of May, as aforesaid; ” that one of the lessors died after suit brought and that his executors were duly substituted.

The answer admits all the allegations of the complaint,, except the portions quoted, and sets up as a separate defense an executed agreement to cancel the lease. The essential details as pleaded are that the defendants refused to pay the April rent by reason of alleged untenantability; that by inadvertence they allowed judgment to be taken against them by default in the sum of $115.21; that thereupon negotiations were had resulting in April, 1896, in an agreement by the lessor to accept the sum of $75 and a surrender of the lease in full satisfaction of the judgment and to allow the tenants to occupy the premises free of charge for a certain period, and that they performed the conditions of this agreement on their part.

On the trial the plaintiffs moved for judgment on the pleadings claiming that no material allegation of the complaint was denied, and that the alleged agreement on which the separate defense was *516founded was without consideration. The motion was denied, and, over the plaintiffs’ objection, the affirmative- was given to the defendants, Predicating error on each of these rulings, this appeal was taken. Neither ground urged by appellants will , support a reversal.

The defendants’ special plea discloses a sufficient consideration. The payment of $75, though less than the amount of the default judgment, coupled with the surrender of the lease invested the' oral agreement with binding legal force. While it is undoubtedly tru,e as a general- proposition that the payment of a portion of an undisputed liquidated debt will not support an agreement by the creditor to accept the part paid in satisfaction of the whole (Pabodie v. King, 12 Johns. 426; Halliday v. Hart, 30 N. Y. 474), courts have seized “ with avidity upon any consideration to support the agreement to accept the lesser sum iii satisfaction off the,larger, or in other words to extract, if possible, from the circumstances of each -case a consideration, for the new agreement, and' to substitute a new agreement in place of the old and thus to form a,defense to the action brought upon- the old agreement.” Jaffray v. Davis, 124 N. Y. 164, and cases there cited. , A creditor - cannot bind himself by a simple agreement to accept^ a smaller sum in lieu of an ascertained' debt of a larger amount, such an agreement being *nudum pactum;*but if there be any benefit or even any legal possibility of benefit to the creditor, that additional weight will turn the scale and render the consideration sufficient to support the agreement. Allison v. Abendroth, 108 N. Y. 473; Boyd v. Hitchcock, 20 Johns. 76; Le Page v. McCrea, 1 Wend. 164; Jaffray v. Davis, *supra;*Bull v. Bull, 43 Conn. 455. In the case at bar the surrender of the lease and the delivery of possession alone constituted sufficient consideration for the landlords agreement' to discharge the tenants obligation. Sherman v. Engel,. 18 Misc. Rep. 484. The defendants further yielded what thisy at least deemed to be-a good defense, the untenantability of the premises, which they might have interposed on opéning the default. Either in that event or in the step necessary to enforce ' the judgment, the landlord would have been subjected to further litigation, trouble and expense. Prom all qf this they, were relieved by the settlement. Jaffray v. Davis, supra, at p. 172.

There is, however á further principle which the appellants overlook ,in attacking the answer. ■ The oral' agreement had become executed and the landlords having accepted its benefits can*517not now assail it. It was quite competent for the parties to this lease to abrogate it by an executed parol agreement. Tallman v. Earle, 37 N. Y. St. Repr. 271; Sherman v. Engel, *supra.*Were the lessees defending under an executory - verbal contract there might be merit in the contention that the payment of a sum less than the debt did not constitute a good accord and satisfaction (Coe v. Hobby, 72 N. Y. 141), .but the oral agreement having been executed, the lessors cannot repudiate it. McKenzie v. Harrison, 120 N. Y. 260.

We hold then that the agreement set up in the separate defense was not void or without consideration.

■ There remains to consider which party had the affirmative under the issues raised by the pleadings.

No material allegation of the complaint was denied, and the plaintiffs were not required to offer any proof to sustain their 'cause of action. The liability of the defendants was to no ex’tent dependent upon occupancy „of the premises and their denial that they “ occupied the same ” created no issue. Their obligation to- pay rent was. complete when they signed the lease, and their refusal or omission to occupy the premises could not •affect their liability. Nor did the denial that the sum was *“*due ” •raise an issue. Having admitted the execution of the lease and the nonpayment of the rent sued for the denial of the conclusion of law, that the sum was due, was a nullity.

Where the complaint alleges facts not essential for the plaintiff to.prove and the same are denied by the answer, this does not deprive a defendant who sets up an affirmative defense of the right to Open and close the case. Murray v. N. Y. Life Ins. Co., 85 N. Y. 236. The defendants, therefore, properly had the affirmative.

Beyond the points discussed the record reveals nothing but the litigation of a question of fact, which was fairly submitted to the jury.

The judgment should be affirmed.

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs to respondents.