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he, 'send me down the lease.' I says: 'No; it is not necessary. got those. Just strike it out, and put one year, instead of five.' all that was said."

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That was

It is apparent from this statement of the conversation, accepting it as accurate, that both Flauraud and Proal expected and intended that the oral agreement then arrived at should subsequently be embodied in a formal written lease. The plaintiff recognizes this, and places his right to a recovery squarely upon the rule, which is well established and often enforced, that in a case wherein, under the statute of frauds, a tenancy can lawfully be created by parol, and the parties have orally agreed upon all the terms, nothing being left to be done except to put them in writing, the letting will be deemed to be complete, although the stipulated written lease should never be executed. This well-recognized rule is, however, to be applied with caution, and is never applied unless it clearly appears that every material term of the contract was in fact agreed to, and that nothing remained for future negotiations and agreement. So we find in a great majority of the cases in which the rule has been applied that the meeting of the minds has been evidenced by letters or other writings, which have shown beyond dispute just what was agreed to. Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209, 39 Ñ. E. 75, 29 L. R. A. 431, 43 Am. St. Rep. 757; Peirce v. Cornell, 117 App. Div. 66, 102 N. Y. Supp. 102. Where the question is, as in the present case, one of intent, it has always been recognized that the circumstance that the parties intended to have a written formal agreement is strong evidence that the oral agreement was not understood or intended to be binding. Bryant v. Ondrak, 87 Hun, 477, 34 N. Y. Supp. 384, citing Brown v. N. Y. C. & H. R. R. Co., 44 N. Y. 79; Franke v. Hewitt, 56 App. Div. 497, 68 N. Y. Supp. 968.

In Arnold v. Rothschild's Sons Co., 37 App. Div. 564, 56 N. Y. Supp. 161, affirmed 164 N. Y. 562, 58 N. E. 1085, the parties had negotiated through a broker for the lease of certain premises. These negotiations had resulted in a note from the broker to defendants saying:

"I have closed the lease for you as directed with Mr. Arnold of store and bas. 742 Broadway for one year from February 1st, 1902, at $5,000 rental payable monthly."

To which defendants had replied:

"Yours received. Mr. R. is satisfied."

store.

It was in contemplation that a formal written lease should be executed. Like the defendant in the present case, the Rothschilds never took possession, but sent word in January that they could not use the As in the present case, no attempt was made by plaintiff to procure the execution of a written lease, but suit was brought when the first installment of rent fell due. The case, therefore, much resembles the case at bar, being, if anything, stronger in favor of the plaintiff, because the letters left no doubt as to what was agreed to. The court said:

"It is claimed by the appellants that if all the terms of the agreement were

duce these terms to writing and execute the writing, the contract was completed, although it was understood between the parties that a formal lease should be executed. It is quite true that, where a valid contract has been made by which the parties understand that their rights are fixed, such a contract may be enforced, although there may be a stipulation of the understanding between them that a more formal contract shall be executed. But it is essential to the enforcement of such an informal contract that the minds of the parties should have met upon all the terms as well as the subject-matter of the contracts; and if anything is left open for future consideration, or if the subject-matter does not appear to be understood alike between the parties, the informal paper cannot form the basis of an agreement. As every one knows, a formal lease contains many stipulations which are not found in the contract growing out of the conversation which Tanenbaum had with these parties. All those stipulations have an important effect upon the rights of the respective parties; and, when it was understood that such a formal lease should be executed, it would be necessary that the preliminary conversations should be quite full and explicit as to the terms of the contract before the parties should be held to a completed contract in the absence of what they had agreed should be the final evidence of the bargain."

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In Brown v. N. Y. C. & H. R. R. Co., 44 N. Y. 79, the subject of contract was a railroad. Negotiations were had looking to a perpetual lease to defendant, with the right to purchase at a given price. The time when the rent should commence, its amount, when payable, the place of payment, and the sum to be paid by defendant in order to become the owner, instead of a perpetual lessee, were agreed upon. The time when the defendant might purchase was not fixed, and the form and covenants of the lease and some other details were left for future determination. The court held that no valid, enforceable agreement had been shown, although so far as the leasing part of the agreement was concerned nothing was left open except the form of the lease. Judge Earl quotes with approval from Ridgway v. Wharton, 6 H. L. Cas. 268, as follows:

"The circumstances that the parties do intend a subsequent agreement to be made is strong evidence to show that they did not intend the previous negotiations to amount to an agreement. * An agreement to be finally settled must comprise all the terms which the parties intended to introduce into the agreement. An agreement to enter into an agreement, upon terms to be afterwards settled between the parties, is a contradiction in terms. It is absurd to say that a man enters into an agreement till the terms of that agreement are settled. Until those terms are settled he is at liberty to retire from the bargain."

Applying the principle enunciated in these and many other cases to the particular case at bar, and still accepting as accurate Flauraud's version of the conversation between himself and plaintiff, it will be seen that the verbal agreement testified to fell far short of a lease complete in all its details. The only thing actually discussed and agreed upon at that interview was the term for which the lease was to be made. We may assume that the subject of the lease, the apartment then held by defendant, and the amount of rent, which had been agreed to between him and plaintiff, were also thoroughly understood. But beyond this nothing was discussed and nothing agreed upon. Especially was there no agreement as to when and how the rent should be paid, or what covenants and conditions should be incorporated into the lease. Flauraud says that he told defendant to sign the lease already sent to him by plaintiff, merely changing the

term contained therein. This did not amount to an agreement to abide by the terms of that document, for defendant then declared, and now declares, that he never saw it, and there is no evidence that it was delivered to him. It has been held that a written agreement to give a lease "in the same manner that my other leases are drawn, to correspond with the present lease when it expires," did not amount to a lease, but merely to an agreement to make one. Becker v. De Forest, 1 Sweeny, 528; Franke v. Hewitt, supra.

The fact that the defendant, at the time of the conversation, held a written lease of the apartment, raises no presumption of an agreement that the new lease should be in the same form. The old lease was not referred to in any way, and we know that in two vital particulars it differed from the lease the parties were attempting to negotiate, to wit, the rental and the terms. Whether or not the written lease which plaintiff says he prepared contained other differences from the old lease we have no means of knowing. What we do know is that it was the evident intention of both parties that a formal written lease should be executed, and that there were many details which it would be proper to incorporate in such a lease, which were not even discussed, much less agreed to, between Flauraud and defendant. As was said in Sourwine v. Truscott, 17 Hun, 432:

"Unless the lease in all its terms was agreed upon, then there was no binding contract which could be enforced at law. * If any of the conditions to be contained in the lease were left indefinite and to be fixed only when the lease should be prepared, there was no such contract as was binding upon the parties at law, whatever may have been the probability that the parties would not ultimately disagree upon the form of the lease, or however unimportant to the lessees the stipulation omitted to be specified might be regarded."

See Booth v. Bierce, 38 N. Y. 463, 98 Am. Dec. 73; Cutts v. Guild, 57 N. Y. 229; Fullerton v. Dalton, 58 Barb. 236.

The conclusion to which this consideration of the authorities leads us is that upon the plaintiff's own showing no valid lease, enforceable at law, was ever made, and there is strong reason for believing that the plaintiff did not at the time, or for a considerable time afterward, consider that an actual lease had been made. A few days after the conversation with Flauraud, and on July 24, 1906, defendant wrote to him that he had decided not to renew his lease. It is true that, assuming a definite lease to have been made, Flauraud was under no legal obligation to answer this letter by asserting that it was too late to withdraw; but, in view of the past relations between the parties, it would have been natural to have done so, if he really understood that a final lease had been definitely agreed upon. No reply whatever seems to have been made to this letter until September 8th, when plaintiff wrote to defendant, rehearsing the latter's negotiations, or, as they are termed, "agreements," both with plaintiff and Flauraud, stating that in relying upon them the season for renting had been allowed to pass, and appealing to defendant as a "matter of justice and honor" to restore the apartment and permit plaintiff to rent it for

pect from a landlord who believed that he held a valid, enforceable lease from a solvent tenant.

We have considered the question raised by the appeal solely upon the evidence offered by plaintiff, accepting it as accurate. From that evidence, as we read it, in the light of well-settled legal principles, there was a failure to prove a valid, complete, enforceable lease in præsenti. There was, therefore, nothing to submit to the jury, and the motion for the dismissal of the complaint should have been granted.

The judgment and order appealed from must therefore be reversed, and a new trial granted, with costs to appellant to abide the event.

PATTERSON, P. J., and INGRAHAM and HOUGHTON, JJ., concur. CLARKE, J., dissents.

ROSENTHAL v. BARNETT.

(Supreme Court, Appellate Division, First Department. April 16, 1909.) PLEADING ($ 317*)-BILL OF PARTICULARS-RIGHT TO Order.

Where the complaint states the cause of action with sufficient particularity, a bill of particulars, not necessary to protect the rights of the defendant, will not be ordered.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 954; Dec. Dig. § 317.*]

Appeal from Special Term, New York County.

Action by Maurice Rosenthal against Aaron Barnett. From an order requiring plaintiff to furnish a bill of particulars, he appeals. Reversed.

Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.

G. S. P. Kleeberg, for appellant.
Abraham Gruber, for respondent.

PER CURIAM. We think that the complaint states the cause of action with sufficient particularity, and that there is nothing in the papers to show that a bill of particulars is necessary to protect the rights. of the defendant.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

WALBRIDGE et al. v. WALBRIDGE et al.

(Supreme Court, Appellate Division, Second Department. April 23, 1909.) INFANTS (§ 83*)—ACTIONS-COMPENSATION OF GUARDIAN AD LITEM.

A court cannot award a guardian ad litem compensation payable out of the estate beyond the taxable costs, including additional allowances authorized by the statute; but any additional compensation must be made payable out of the interest of the infant, and, where the infant had no

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

interest in the subject-matter of the litigation, the guardian will only be allowed the statutory costs and allowances.

[Ed. Note. For other cases, see Infants, Cent. Dig. §§ 232-235; Dec. Dig. § 83.*]

Appeal from Special Term, Kings County.

Action by John H. Walbridge and others against George O. Walbridge and others. Judgment for defendants, and plaintiffs appeal from so much of the judgment as directs plaintiffs, as executors, to pay $1,500 to the guardian ad litem of the infant defendant. Reversed. Argued before HIRSCHBERG, P. J., and GAYNOR, BURR, RICH, and MILLER, JJ.

Vine H. Smith, for appellants.
James C. Church, for respondents.

MILLER, J. This action was brought for the construction of a will. The court declined to assume jurisdiction, on the ground that the surrogate had jurisdiction to determine all the questions presented. The allowance to the guardian ad litem, payable out of the estate, was made as compensation, and not pursuant to section 3253 of the Code of Civil Procedure; and the learned counsel for the respondent expressly disclaims in his brief any attempt to sustain the allowance as one made pursuant to said section of the Code.

We are constrained to reverse that part of the judgment appealed from, on the ground that the court had no power to make the allowance payable out of the estate. The only case cited by the respondent to sustain the judgment is Weed v. Paine, 31 Hun, 10; but, as has many times been pointed out, that case involved only the power to make an allowance of taxable costs, including the additional allowances authorized by section 3253 of the Code of Civil Procedure. The law seems to be settled in this state by a long line of decisions that the court has no power to award a guardian ad litem compensation, payable out of the estate, beyond the taxable costs, including additional allowances authorized by the statute; that any additional compensation must be made payable out of the interest of the infant; and that, where it turns out that the infant has no interest in the subject-matter of the litigation, the guardian has to be content with the statutory costs and allowances. Union Ins. Co. v. Van Rensselaer, 4 Paige, 85; Gott v. Cook, 7 Paige, 521-544; Doremus v. Crosby, 66 Hun, 125, 20 N. Y. Supp. 906; Downing v. Marshall, 37 N. Y. 380; Matter of Robinson, 40 App. Div. 30, 57 N. Y. Supp. 523, affirmed 160 N. Y. 448, 55 N. E. 4; Matter of Farmers' Loan & Trust Co., 49 App. Div. 1, 63 N. Y. Supp. 227; Brinckerhoff v. Farias, 52 App. Div. 256, 65 N. Y. Supp. 358; Illensworth v. Illensworth, 110 App. Div. 399, 97 N. Y. Supp. 44; Matter of Holden, 126 N. Y. 589, 27 N. E. 1063; Matter of Pitney, 186 N. Y. 540, 78 N. E. 1110. Those decisions were made in accounting proceedings in the Surrogate's Court, and in Supreme Court actions for the construction of wills, for executors' or trustees' accountings, for mortgage foreclosure, and for partition of real property. The re

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