Wilson v. Lester & Holbrook — 64 Barb. 431

Majority

p. 423

Wilson vs. Lester and Holbrook.

Headnote

It seems an agent employed to let premises and collect the rents has no authority to consent to the substitution of a new tenant, and the discharge of the original lessee; that not being within the ordinary scope of such an agent’s authority.

Where a lease is under seal, a parol agreement to terminate the lease and accept another person as tenant, without an actual surrender, is not sufficient to terminate the first lease, where the unexpired term is more than a year.

Nor will the mere receipt of rent from the assignee of the lease have that effect, where there is no proof of the surrender of the premises, and an acceptance of the assignee as tenant.

The cases of Smith v. Hirer, (2 Bari. 180,) narrower y. Heath, (19 id. 331,) and Smith Y. Devlin, (33 H. Y. 363,) commented on, and distinguished.

APPEAL from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.

p. 424

The action was for a quarter’s rent of a store at No. 13 Dey street. The plaintiff, by George Middleton as his agent, leased the premises for three years and two months from the 18th of February, 1871, to the defendant Lester. The defendant Holbrook was surety in the lease, for the payment of the rent. Lester assigned the lease, February 27, to the National Refrigerating Company. On the 1st of May, 1871, the rent of - the premises was paid by the check of Holbrook, and receipt given by Middleton, at his request, in the following words

“Received, New York, May 1, 1871, from the First National Refrigerating Company, seven hundred and fifty dollars; the same being for amount due for rent of my store, No. 13 Dey street, New York) from March 1st to May 1st, 1871.

L. O. Wilson,

$750. ' By George Middleton,

His attorney.”

The defendants claimed that the plaintiff accepted of the Refrigerating Company as tenant, in their places, and that they were thus released from all obligations under the lease. In the acknowledgment of the execution of the lease, by Middleton, it was stated that he executed the same as the act and deed of Wilson, (the plaintiff,) by virtue of a power of attorney duly executed by Wilson, bearing date January 22, 1864. And in the verification of the complaint, he swore that he was the chief clerk, agent and attorney of Wilson, and had been such for fifteen years, and had charge of the lease in question and executed the same on the part of Wilson and as his attorney. He testified that the plaintiff had been absent in Europe, a good deal of the time ; and in his absence, he (Middleton) -was left in charge of his affairs ; that he had been in the management and control of the demised premises about ten years ; had col

p. 425

lected and paid over the rent on it during that time, to the plaintiff, from the tenants in possession, &c.

The jury found a verdict for the defendants.

Chas. Matthews, for the appellant.

John L. Hill, for the respondents.

There was no good objection to proving the assignment from Lester to the company, of the lease executed by the plaintiff. It was part of the evidence to make out the defence. The order of proof was a matter of discretion for the court.

I think it very doubtful whether Middleton, as the plaintiff s agent, had any authority to consent to the substitution of a new tenant, and the discharge of the original lessee. Such was not within the ordinary scope of an agent’s authority to let premises and collect rents. Whether it be so or not, no such objection was made on the trial, and no request was made of the judge to charge the jury on that point. We must presume the parties assented to that view of the agent’s authority as submitted by the court to the jury.

There was a total failure of evidence to make out a surrender by Lester and an acceptance by the plaintiff of the company as tenant.

Where a lease is under seal, a parol agreement to terminate the lease and accept another as tenant, without an actual surrender, would not be sufficient to terminate the first lease, where the unexpired term is more than a year. No case has been cited to us where such an effect is given to mere receipt of rent from the assignee. In Smith v. Hiver, ( 2 Barb. 180 ,) there was an express agreement for the surrender of the premises under the old lease, and a reletting to the new tenant. In narrower v. Heath, {IQ Barb. 331,) the original agreement was by parol for the cropping of a piece of land on shares,

p. 426

and there was an agreement that a third person' should do the work on the land and take the place of the tenant. In that case Welles, J., says : “ The rule was different as to sealed leases containing express covenants, where the obligations of the lessee under the covenants would, in some cases, continue.” The statutes, (2 D. S. 134,) prohibit the assignment or surrender of a term for more than one year, unless by act or operation of law, or by deed or conveyance. In Smith v. Devlin, (23 N. T. 363,) while the court held that there might be a surrender by parol, of one year unexpired, in a lease which had been for a larger period, it is conceded that if the term was for more than a year no such surrender could be by parol.

[First Department, General Term, at New York,

January 6, 1873.

Ingraham and Fancher, Justices.]

There was no evidence to warrant the finding of a surrender to the plaintiff by his tenant, and on this point the verdict is against the evidence. The motion for a new trial should have been granted; but as it is only as against the evidence, it must be on payment of costs.

Judgment reversed; new trial granted on payment of costs.

Cases cited

Smith v. Niver 2 Barb. 180 N.Y. Sup. Ct. 1848-01-03 p. 425