For the appellant, Louis Santorf.
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
BODINE, J. This is an appeal from the District Court.
The state of demand alleges the leasing of premises at 122 Marshall Street, Paterson, at a yearly rental of $780, payable monthly from March 1st, 1946, and a subsequent parol agreement whereby the landlord agreed to furnish hot water for the additional sum of $3 per month. This agreement the tenant alleges was breached; hence, this action.
The state of demand pleads tender of the money due and refusal to furnish hot water. The plaintiffs had judgment.
Anthony S. Mancuso has since become bankrupt. The trustee in bankruptcy, though noticed, has not appeared in the case and there is no brief for either respondent. The lease in writing obligated the landlord to furnish water. It did not specify hot water.
The basis for the recovery was failure to furnish hot water, the right to which was predicated upon the parol agreement mentioned. It was additional to the written undertaking.
The court on the proofs could find that the additional agreement did not vary the written lease but adds a new requirement not provided for.
It is next urged that the new agreement was void since it was not to be performed within one year. R.S. 25:1-5. The
defense, though not pleaded, was available under a general denial of the contract. Owen v. Riddle, Ex'r, 81 N.J.L. 546; Ziegener & Lane v. Daeche, 91 Id. 634; ...