Babin v. Ensley
14 A.D. 548
| N.Y. App. Div. | 1897
Hatch, J.:

The unquestionable right exists to maintain this proceeding against the defendant. The contest before the justice related to the term for which the premises were demised. Upon this point the testimony was quite conflicting, and the determination of that question by the justice had evidence for its support, and had no error occurred upon the trial, his judgment based thereon would h,ave been sustained. The reservation of decision by the justice to enable the parties to file briefs did not have the effect of ousting him of jurisdiction. The cause was not before him for decision until the briefs were handed in. It was at that time that the case was submitted to him for decision, and he decided it the next day, which brought the determination within the prescribed time. (Code Civ. Proc. § 3015.) Assuming that the question could be raised by appeal, there was no defect in the warrant of removal. The Code of Civil Procedure (§ 2251) provides that the warrant .shall be issued under the hand of the justice, directed to the sheriff of the county or to any constable or marshal of the city where the property, or a portion of it, is situate, commanding such officer to remove all persons therefrom and put the petitioner in full possession thereof. The warrant in this case answered all of these requirements, and the fact that in the recital in the warrant Edwin E. Ensley is stated as being the person in possession could in no wise affect it, as all the essential requisites of a perfect warrant remained with this rejected. It was not matter -that was required. Macclinchey was employed by the plaintiff to rent these premises, and if we assume that he was only actually authorized to rent them by the month, such fact would not be conclusive upon the defendant. As to her, he was held out as having authority to rent the premises without limit as to time, in consequence of which she could make a valid agreement with him for the occupation of the premises for a year, and such agreement would become binding upon the plaintiff. (Walsh v. Hartford *550Fire Ins. Co., 73 N. Y. 5.) No rig-ht, therefore, rested in the plaintiff to- defeat the term for which plaintiff actually stipulated and under which she entered and occupied, even though the agent’s, actual authority was limited to a monthly renting. . The case, therefore, rested upon what the agreement-was, and as upon this point there was a sharp conflict in the testimony, defendant’s rights should not be prejudiced by the reception of improper evidence which had a material bearing upon the issue. At the time when the premises were leased the plaintiff was in England. Upon the trial her sister was called as a witness and permitted to testify to a conversation between herself and the agent, in the absence of the defendant, in which they discussed the advisability of renting the premises and in which the agent stafed that -he had two applications to rent for thirty-three dollars a month ; that he could not get forty dollars and that he advised taking the former for the winter months. The sister thereupon communicated this .conversation to the. plaintiff by. letter, and the letter itself was produced and introduced in evidence. The defendant objected to the conversation and the letter; the objections were overruled and the evidence was received. This testimony was clearly inadmissible and tended to the prejudice of the defendant. Its purpose was to show that the plaintiff only intended to allow a monthly renting. But this could not affect the defendant ; she had no notice of it, was not present and there was nothing in the attitude occupied by the agent to ¡lead her to suppose that there was any limitation upon his-right to rent for the year. The evidence also-had! a-tendency to support the testimony of the agent, to the effect that he only rented the premises to the defendant by the month, as it authorized the inference that he would not exceed his authority in dealing with, the property. The testimony was in no sense binding upon the defendant and she could not be affected thereby. In no view can this ruling be sustained.

The judgment of the County Court should, therefore, be affirmed, with costs.

All concurred.

Judgment of the County Court affirmed, with-costs.