Johnson v. Ehrman Brewing Co. — 66 A.D. 103

Majority

p. 103

Rosalia Johnson, Respondent, v. Ehrman Brewing Company, Appellant.

Headnote

Husband and wife—authority presumed in the former to continue a tenancy which • began under a lease negotiated and signed by him in her name, she receiving the rent paid by the tenant to him.

Where all the negotiations, terminating in a lease of certain premises for a year at the rate of fifteen dollars per month, payable monthly in advance, were made by the lessee with the lessor’s husband, who, by the lessor’s authority, signed the lease in her name, and the rent is paid monthly to the lessor’s hus-' band, and is by him paid over to the lessor, the lessee, in the absence of any notice that, the husband’s authority has been revoked, is entitled to presume that.the agency continues,'and an arrangement made between the lessee and ■ the lessor’s husband, by which it is agreed that after the expiration of’the lease ' the tenancy shall be changed into one from month, to month, is binding upon the lessor, notwithstanding the fact that the latter testifies that she never directed her husband to make the new agreement and did not know of its execution.

Appeal by the defendant^ the Ehrman Brewing Company, from a judgment of thé Supreme Court in favor of the plaintiff, entered in the Office of the clerk of the county of Chemung on the 26th day-of January, 1901, upon the verdict of a jury, and also from an order-

p. 104

entered in said clerk’s office on the 2d day of May, 1901,. denying the defendant’s motion for a new trial made upon the minutes.

E. C. Aiken, for the appellant.

Frank C. Ogden, for the respondent.

The undisputed facts in this case are, that on April 14, 1898, the plaintiff leased to the defendant certain premises in Elmira, N. Y,, for one year from May 1, 1898, at fifteen dollars a month, payable monthly in advance. All the negotiations were made by the defendant with the plaintiff’s husband who, by the authority of the plaintiff, signed the‘lease in the plaintiff’s name. The rent was paid monthly by the defendant to the plaintiff’s husband who paid the same to the plaintiff. In"the month of April, 1899, before the lease expired, the defendant stated to the plaintiff’s husband that the defendant had decided to discontinue the business of its agency in Elmira, and that after the expiration of the lease it would rent the premises from month to month so long-as it stayed. To this the husband consented and the defendant continued in possession, paid the rent for the months of May,'June and July to the husband who paid it to- his wife, and on July 8, 1899, the defendant quit the premises and removed its property therefrom.

The plaintiff testified that she never directed her husband to make a' new contract and did not know that there had been any modification; Her husband was dead when she commenced the action!.

. The action was brought to recover for nine months’ rent from August 1, 1899, and the jury rendered a verdict for the plaintiff.

I think the .court erred in denying the request of the defendant’s counsel, made at the close of the testimony, that the court direct a verdict for .the defendant. The plaintiff having clothed her husband with authority to lease the premises and to collect the rent therefor,the defendant had a right, in the- absence of any notice of revocation of such authority, to presume that the agency continued and extended to the making of the new lease. She- is estopped from denying that the authority on which she induced the defendant to act was real authority. (Bodine v. Killeen, 53 N. Y. 93 ; Dillaye

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v. Beer, 3 T. & C. 218; Babin v. Ensley, 14 App. Div. 548 ; Cosmopolitan Range Co. v. Midland R. T. Co., 44 id. 467.)

The judgment and order should be reversed and a new trial granted, with costs.

All concurred.

Judgment and order reversed on the law and the facts and new trial granted, with costs to appellant to abide the event.

Cases cited

Bodine v. Killeen 53 N. Y. 93 N.Y. 1873-06-03 p. 104