Figueira v. Lerner

This is a proceeding, brought under the provisions of subdivision 4 of section 2232 of the Code of Civil Procedure, to oust the occupant of certain premises in the borough of Brooklyn, on the ground that said occupant had intruded into said premises without permission of the owner, and that the occupancy thus commenced had continued without such permission. The occupancy was admitted by the answer, but it was urged that it was with the permission of the owner, given by one Marks, acting as agent for the owner. The learned justice, upon the trial of the issue thus raised, determined the matter in favor of the owner of the premises, and an appeal from the order entered upon this decision comes to this court.

We are asked to reverse the order upon the ground that the weight of evidence preponderates in favor of the appellant, that the final order is against the evidence, and that it is contrary to law; but an examination of the record does not warrant this relief. The. question presented was whether Marks was in fact the agent of the owner of the premises, with authority to rent and give possession to the appellant. Upon this point there was a direct conflict of evidence, and, the learned justice having decided in favor of the owner of the premises, it is not for this court to disturb this conclusion. Fowler v. Marcus, 41 App. Div. 425 , 58 N. Y. Supp. 867 . The evidence clearly warrants the decision; for there is practically no dispute that Marks was merely authorized to bring a tenant to the owner of the premises, or to his general agent, and to receive a commission for such work. As to whether this authority was extended at a subsequent interview with the owner in respect to the renting of the premises to the defendant, the evidence is conflicting, and the justice before whom the question was tried has found in favor of the petitioner. While a principal is bound by his agent’s acts when he justifies a party dealing with his agent in believing that he has given to the agent authority to do those acts, he is responsible only for that appearance of authority which is caused by himself, and not for that appearance of conformity to the authority which is caused only by the agent; that is, he is bound equally by the authority he actually gives, and by that which by his acts he appears to give. For the appearance of authority he is responsible only so far as he has caused that appearance. For the appearance

The order appealed from should be affirmed, with costs. All concur.