N. Y. Rep.] Dissenting opinion, per EDWARD T. BARTLETT, J. rule is clearly stated as follows: "The relation of the parties under such circumstances has been the subject of repeated adjudication. In the leading case of Schuyler v. Smith (51 N. Y. 309) Judge EARL, in writing for the Commission of Appeals, said, in respect of a tenant's holding over: 'The owner of the premises may treat him as a trespasser or as a tenant for another year upon the terms of the prior lease so far as applicable.' The court subsequently reviews many cases and approves of their doctrine, in which the rule is laid down, without qualification, that where a tenant holds over after the expiration of his term, without any express agreement, but with the assent of the landlord, the law will imply that he holds the premises upon the same terms as was his previous holding, and such view has been generally adopted" (citing cases). "The limitation implied by the language, 'so far as applicable,' manifestly can have no application in the absence of proof showing a changed condition of affairs which would naturally or of a necessity operate to modify the relations existing between the parties. In the absence of any proof upon the subject there can be no reason for holding that the relations of the parties have changed, as nothing has occurred to break the continuity of the holding, or from which it can be implied that any conditions exist rendering inoperative any of the terms of the lease. Nor do we think that the rule is limited to the relation merely of landlord and tenant in the use and occupation and the payment of rent, so as to exclude the independent covenants from continuing with the other parts of the lease. A holding over, to be upon the same terms as contained in the original lease, carries with it the necessary implication that all of the covenants which became binding by the execution of the lease continue to remain in full force unless changed conditions appear rendering them inapplicable. We can conceive of no sound. reason which would warrant the rejection of any part of the lease upon which the parties agreed. Their relation continued in all respects precisely as if the term had not expired. The holding over constitutes merely an enlargement of the term, Dissenting opinion, per EDWARD T. BARTLETT, J. [Vol. 196. and the lease is applied thereto with the same force as though it had been re-executed." The case of United Merchants' Realty & Imp. Company v. Roth (193 N. Y. 570) is cited as an authority for the plaintiff, appellant. This was an action brought to recover rent for a part of certain premises in the city of New York for five months included in the year 1906. The complaint contained ten counts, two for each month, one alleging a right to recover because the defendant held over after the expiration of his term, and the other an express contract. This case was decided by a divided court, two judges dissenting. CULLEN, Ch. J., writing for the majority, said: “I concur in the opinion of my brother VANN as to the last five counts in the complaint, but I think that the first five are also good. The question presented by the demurrer to these counts is whether a new lessee, whose lease begins at the termination of a prior lease, can, at his option treat the prior lessee, in case he holds over, as his tenant under the terms of the original lease.” (p. 575). This was the sole question litigated. The position of the dissenting judges is thus expressed: "If the relation of landlord and tenant existed between the plaintiff and defendant under the lease which expired on the first of May, 1906, the former had the right to treat the latter as a tenant for another year upon the same terms, for the law implies an agreement to that effect under those circumstances. A tenant holding over from his landlord without leave is liable for rent at the election of the latter upon the theory of a renewal of the lease by implication." (pp. 577, 579). The dissenting judges further held that the relation of landlord and tenant did not exist between the parties during the continuance of the original lease because no part of the term was assigned to the plaintiff by the owner of the reversion. The majority of the court held, however, that a new lessee, whose lease begins at the termination of a prior lease can, at his option, treat the prior lessee, in case he holds over, as his tenant under the terms of the original lease. * * * The question now before us was not presented in the case N. Y. Rep.] Dissenting opinion, per EDWARD T. BARTLETT, J. we are considering, and it was, on the contrary, clearly assumed that the tenant holding over was bound by the terms of the original lease. The citation of authority as to the effect of a tenant holding over might be continued, but it seems unnecessary. When we consider this question on principle the position of the defaulting tenant is clear. On the termination of the lease it is his duty to vacate the pre:nises at once, and failing in that he must abide by the election vested by law in the landlord. The latter may evict the tenant or compel him to hold over for another year subject to the terms and conditions of the former lease. No option is vested in the tenant and the action of the landlord is by way of penalty; the element of mutuality does not enter into the situation. The landlord says to the tenant, in effect, I will not evict, but for another year I will subject you to all the terms and conditions of the lease that has expired. The construction which permits the tenant to insist that his occupation of the premises after his default entitles him to all the privileges of a new lease is to ignore the existing relations between him and his landlord. I am of opinion that the consolidated action seeks to recover rent due under the original lease and its renewals from year to year, and that the former action to recover the rent for a portion of the year 1898, which proceeded to judgment and was paid, is a bar to this recovery. The judgment of the Appellate Division should, therefore, be affirmed, with costs to the respondent in all the courts. CULLEN, Ch. J., WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur with WERNER, J.; EDWARD T. Bartlett, J., reads dissenting opinion; GRAY, J., absent. Order reversed, etc. LOUIS LESE, Appellant, v. ANNA LAMPRECHT, Individually and as Executrix of HUGO LAMPRECHT, Deceased, Respondent. Contract-when oral evidence inadmissible to vary or explain written contract specific performance of contract for sale of land - when delay beyond time appointed to close contract may be excused. Where a written contract is clear in its terms and purports to express the entire arrangement of the parties and to direct upon all the questions under consideration, it conclusively determines the rights of the parties and can neither be contradicted, varied nor explained. Contracts that are collateral to, but independent of, a written contract may be established by oral evidence, but where the subject-matter upon which the parties contracted includes the matter sought to be established by parol, it is conclusively presumed, in the absence of fraud, that the contract, as written, includes an accurate and full statement of their intention. Where a written contract provides for a deed free from all incumbrances with one expressly specified exception, oral evidence of a further exception made prior to or contemporaneous therewith is improperly received. Where a written contract adjourning the time of closing a title included express agreements binding upon the parties in connection with the adjournment without expressly making the time, to which the closing of title was adjourned, of the essence of the contract, the reception of parol evidence of an agreement prior to and contemporaneous with such written contract to the effect that time should be of the essence thereof is error. Where the time for closing a transaction for the sale of real property is not expressly made of the essence of the contract, and it does not appear that a short delay would essentially affect carrying out the intention of the parties, courts of equity may compel specific performance although the party asking therefor has failed to perform his part in the exact time specified therein, provided such failure has not arisen from bad faith or inexcusable delay. Lese v. Lamprecht, 123 App. Div. 919, reversed. (Submitted June 11, 1909; decided October 12, 1909.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered N. Y. Rep.] Opinion of the Court, per CHASE, J. January 25, 1908, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. John D. Connolly for appellant. As it was not expressly stipulated in the contract that time was of its essence; as the subject of the sale did not fluctuate in value, and there had been no change of circumstances, and the delay, if any, did not involve the vendor in any loss, and every act of the vendee was in affirmance of the contract, specific performance should have been decreed. (Iun v. Bourdon, 57 App. Div. 351; Willis v. Dawson, 34 Iun, 492; Shipman v. Cummins, 19 N. Y. Supp. 974; Margraf v. Muir, 57 N. Y. 155; Bennet v. Bennet, 10 App. Div. 550.) The court below improperly admitted oral testimony to vary the terms of the written contract. (House v. Walch, 144 N. Y. 418; Corse v. Peck, 102 N. Y. 513; Brantingham v. Iuff, 174 N. Y. 53; Stowell v. G. Ins. Co., 163 N. Y. 298; Dady v. 172 N. Y. 447.) O'Rourke, Arthur J. Westermayr for respondent. The time for closing the title was adjourned from October 5, 1905, to November 3, 1905, upon the positive understanding that the title would be closed on that date. As a condition for the adjournment time was made the essence of the contract. (Dwark v. Weinberg, 139 N. Y. S. R. 504.) The court below properly admitted testimony as to the mortgage on the property and as to time being the essence of the contract, although no provisions as to the same were contained in the written adjournment. (1 Rice on Ev. 259; Durkin v. Cableigh, 17 L. R. A. 290; Juillard v. Chaffee, 92 N. Y. 535; Englehorn v. Reittinger, 122 N. Y. 80; Chapin v. Dobson, 78 N. Y. 74; Norman v. White, 30 Neb. 302.) CHASE, J. This action is brought to compel the specific performance of a written contract made by the defendant's |