87 N.Y.S. 558 | N.Y. App. Div. | 1904
Lead Opinion
There are two causes of action alleged in the complaint, both based upon a lease by the plaintiff to the defendant of certain premises therein described. A copy of the lease is annexed to the complaint, and by it the plaintiff leased to the defendant an apartment in the house Ho. 2 West Ninety-fourth street, in the city of Hew York,
The case coming on for trial before the court and a jury, the plaintiff proved that the defendant took possession of the premises prior to the 15th of February, 1902; that she paid rent up to the fifteenth of September, but had not paid anything since: that she vacated the premises in the early part of September, 1902; that the agent of the plaintiff then endeavored to procure a tenant for the premises and succeeded in renting the same for the account of the defendant on the 9th of December, 1902. This lease of the premises was at the rate of $1,200 a year, from January 1 to October 1,1903,
After the defendant rested, the plaintiff’s counsel moved to strike •out the testimony of the defendant in regard to the conversation with Smith in which he said “ very well ” to the request that the defendant pay a month in advance and give up the apartment, on the ground that there was no evidence that the agent was authorized to accept any surrender, and also upon the ground that the lease provides that a surrender can only be had by an acceptance on the part ;of the landlord in writing. That motion was granted, and the
•Upon this evidence it was compétent for the jury to find that ■these agents had authority from the plaintiff to make leases of the •premises, to modify leases when made, or to accept a surrender of the property leased. If they had a right as plaintiff’s agents to modify a lease by reducing the rent, they certainly had authority to modify the lease by accepting a surrender of the premises, and a right to modify or waive the written provision in the lease that no surrender would be valid except in writing. The effect of the agent’s testimony was that he had authority to modify leases made by him on the part of the plaintiff without consulting with her; and an agreement for a surrender of the premises, based upon a valid consideration, would certainly be no greater modification of the lease than an agreement to reduce the amount of rent $100 a year, which it was conceded that the agent did on behalf of the plaintiff. It was error, therefore, to strike out the testimony of the defendant as to the agreement with Smith.
We think also that it was upon this-evidence a question .for the jury as to whether or not there was an actual surrender of the lease and an acceptance by the agent of rent in advance for the month ending September fifteenth as a consideration for this agreement to end the term on that day. If the defendant called upon the agent of the plaintiff in August and said that she would give up the apartment and would pay one month’s rent in advance to give him an opportunity of renting it, and if the agent said that was all right and accepted the payment of one month’s rent m advance, and the defendant, acting on the agreement, delivered possession of the premises to the plaintiff who, "under the agreement, took possession, of the premises and, without notice to the defendant that it was for her account, rented them for a term extending beyond the defendant’s term, there was evidence to justify a finding that the agent for a valuable consideration had accepted a surrender of the term-from
I think, therefore, that upon the testimony there was evidence to justify the jury in finding that Smith was. the agent of the plaintiff and had authority to make and modify leases for the premises in' question, and that the evidence of the defendant as to the agreement was competent under her defense, and that it was competent for the jury to find that the lease was modified by making it end on the 15th of September, 1902; and if the defendant delivered the possession of the premises to the plaintiff or her agent under the agreement, the liability of the defendant for rent ceased on the 15th of September, 1902, and the plaintiff was not entitled to recover. It follows that it was error to strike out the testimony of the defendant as to her agreement with Smith, and that upon the •evidence that was a question for the jury.
The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., O’Brien and Hatch, JJ., concurred.
Concurrence Opinion
I concur in the result upon the ground that even though the agent, in view of the express provision of the lease regulating the method of surrender, was not authorized to accept a surrender, of the premises, yet the landlord having subsequently accepted possession, this constituted a ratification of the terms of surrender which presumably were communicated to him. The subsequent possession of the landlord was obtained through the arrangement made by the tenant with his agents. He could not accept part and repudiate .part, at least not without first notifying the tenant and giving her an opportunity to pay the rent. But for' the attempted surrender to the agent the landlord could not have obtained possession.
Judgment and order reversed, new trial ordered, costs to appellant to abide .event.