Simons v. Evans — 43 N.Y. St. Rep. 32

Majority

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Emanuel Simons, App’lt, v. George W. Evans, Resp’t.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

Landlord and tenant—Action fob bent.

Plaintiff leased certain premises to defendant for three years from May 1, and the latter gave a post dated check for the first quarter’s rent, which was subsequently stopped. Defendant endeavored to repudiate the lease on the ground that he did not obtain immediate possession in accordance with a written consent given him by the person who drew the lease, whose authority to do so was denied by plaintiff. Held, that the agency of such person was directly in issue, and a direction of a verdict for defendant was erroneous.

Appeal from judgment in favor of defendant, entered on verdict directed by the county court on appeal from a justice’s judgment in favor of plaintiff.

Wm. M. Benedict, for app’lt; J. Stewart Boss, for resp’t

On the 19th of March, 1888, the plaintiff by a written to premises on Flushing avenue in Brooklyn, for the term of three years from the 1st of May, 1888, at the rent of $425 yearly, payable quarterly in advanca 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 with one Mr. Gondict, 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 of this check was stopped by the defendant.

This action is brought to recover the quarter’s rent. It appeared 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 Gondict 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 Gondict 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 Gondict. There was no proof of author

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ity 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

Judgment and order reversed and new trial granted, with costs to abide event.

Dykman and Pratt, JJ., concur.