Opinion
October, 1920.
Morrison Schiff (Samuel W. Dorfman, of counsel), for motion.
Isaac Gutman (Max Schleimer, of counsel), opposed.
The cause of action which the defendant has demurred to alleges, shortly stated, that the defendant, as landlord, orally agreed with the plaintiffs, tenants, that if the plaintiffs, who were then in possession as tenants of the premises in question, made various contemplated additions, improvements and alterations to the demised premises, the defendant would give them an option to extend the lease, on certain stated terms, for an additional five years, and would reduce that agreement to writing. It is further alleged that the plaintiffs did the work on the premises as specified, but the defendant refused to execute the written agreement. There is no dispute in the briefs on the point of the power of the court to enforce such an oral agreement, and the cases hold that such an agreement is valid and enforcible when performed on one side. Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273; Cooley v. Lobdell, 153 N.Y. 596; Everdell v. Hill, 58 A.D. 151; Schirmer v. Rehill, 57 Misc. 439; Brune v. Vom Lehn, 112 id. 342. On behalf of the defendant it is urged that the action for specific performance cannot be maintained until the alleged option has been exercised. The grievance of the plaintiffs is not, however, that the defendant has refused to give them a lease after their exercise of their option to demand such an extension. Their grievance is that the defendant will not perform its agreement to execute a writing setting forth that option. The defendant cites the case of Goldsmith v. Tolk, 138 A.D. 287; affd., 203 N.Y. 573, which held that the plaintiff did not need to have the alleged oral contract of guaranty reduced to writing because if such an oral contract existed the plaintiff could enforce it without any writing. In the present case, however, the remedy at law is not adequate because the statute requires, as I construe it, that an agreement of this kind, as the extension provided for is for a period of over three years, must be in writing (Real Property Law, § 290, subd. 3) and recorded (§ 291) in order to be valid against subsequent purchasers in good faith and for a valuable consideration. In support of the demurrer reliance is placed upon the rule that specific performance will not be decreed when the contract is not mutual in its remedy, and Wadick v. Mace, 191 N.Y. 1, is cited on the point, among other cases. The opinion in that case, however, calls attention to the fact that the rule applies only to executory contracts. If the plaintiffs here had sought this relief before they had performed the contemplated work on the demised premises, the case would fall within the rule. But before they brought this action they had fully performed all that was to be performed by them to entitle them to what they now seek, and the contract became an executed one for the purposes of this suit, and no longer falls within the rule or the reason underlying the rule to which reference is made above. The motion to sustain the demurrer should, therefore, be denied, with ten dollars costs.
Motion denied, with ten dollars costs.