Majority
p. 698Simmons v. Evans. (Supreme Court, General Term, Second Department. December 14, 1891.) Argued before Barnard, P. J., and Dykman and Fratt, JJ.
Headnote
Landlord and Tenant—Action for Kent—Evidence!Defendant took a lease of certain premises on March 14th for a term beginning* May 1st, the premises up to that time being in the occupancy of third persons. On May 1st, defendant refused to take possession of the premises on the ground that, plaintiff had given a written consent that he should have immediate possession of' the premises on the day the lease was executed. This consent was written by • plaintiff’s agent, whose authority was denied by plaintiff, and the consent was unsigned by him. Held, the authority of the agent to give such consent being in issue, there was a question for the jury, and that the court erred in directing a ver- • diet.
Appeal from Kings county court.
Action by Emanuel Simmons against George W. Evans. From a judg-. ment of the county court, directing a verdict for defendant, plaintiff appeals..
Kevcrsed.
Wm. M. Benedict, for appellant. J. Stewart Ross, for respondent.
On the 19th of March, 1888, the plaintiff, by a written-lease, let and rented to the defendant certain premises on Flushing avenue-in Brooklyn for the term of three years from the 1st of May, 1888, at the rente
p. 699
of $425 yearly, payable quarterly in advance. There was a privilege to purchase given to the defendant. The defendant was to make improvements on the property, which consisted of vacant lots, and, if the right to purchase was not accepted, the improvements were to revert to the plaintiff. At the time the lease was signed by defendant he deposited witli one Mr. Condiet, who was the person who drew up,the lease, a check for one quarter’s rent in advance. The check was dated May 1,1888,—the date of the commencement of the term. The payment of this check was stopped by the defendant. This action is brought to recover the quarter’s rent. It appears on the trial that-at the time of the execution of the lease in March, 1888, the lots were in the possession of third parties. On the 1st of May, 1888, the premises were ready for the occupancy of defendant, but he took no possession of the same. The defense is based upon a paper given by Condiet in the name of plaintiff that the defendant might, in consideration of the lease, take immediate possession of the lots in March, 1888. The plaintiff testified that Condiet had no authority to give this paper; that he was not his agent beyond drawing up a lease which he had made, and which he did draw correctly; that he (plaintiff) knew nothing of the consent to take immediate possession in March of the lots.There was a question of fact for the jury. The lease is signed by the plaintiff in person. The consent to take immediate possession is wholly written by Condiet. There was no proof of authority in Condiet to give this consent. The plaintiff expressly testifies that he had no such authority. The defendant only testifies that he got the consent at the time he got the lease, and that the papers were both delivered to him by Condiet. The agency of Condiet to-give the consent was thus directly in issue, and the direction of a verdict for defendant was erroneous. There should therefore be a new trial, with costs to abide event. All concur.