108 N.Y.S. 41 | N.Y. App. Div. | 1908
This is a summary proceeding by landlord against tenant. The tenant answered that he held, under a renewal of his year’s lease for an additional year. ' The issue thus joined was tried before a jury. The verdict was for the tenant. This appeal is from an order-refusing to set aside the verdict and to order a new trial. There is no appeal from any' final order. An appeal is taken also from the “ judgment.” There is no judgment, technically speaking, for the termination of such proceeding is a final order. (Code Civ. Proc. § 2249.) The tenant relied upon a parol lease for one year in renewal of an existing written lease for one year, and his testimony is that such renewal-was made by the agent of the landlord, who wan her husband. The appellant insists that there is failure of proof of agency. It is true, as contended, that agency as against the principal cannot be established by the declarations of the alleged agent. But this rule often misleads to the contention that such agency cannot be proved by the testimony of the agent, which is not the rule. (Brown v. Cone, 80 App. Div. 414; 2 Greenl. Ev. [15th ed.] § 63.) The landlord called her husband as a witness, and he testified upon her examination that he was the agent of the premises and-that he had been in charge.'of renting them for two years — a period covering the time when the alleged renewal was " given. As such ah agent he had authority to rent the premises, for one year (McAdam Landl. & Ten. [3d ed.] § 253, and authorities cited), as he had done. And 1 think that he also as such agent had the right to renew the lease for a year. (Pittsburg Mfg. Co. v. Fidelity Title & Trust Co., 207 Penn. St. 223.) The testimony as to the renewal of the lease suffices to sustain the finding of that fact by the jury.
The order is affirmed, with costs.
Hooker, Gaynor, High and Miller, JJ., concurred.
. Judgment and order of the Municipal Court affirmed, with costs.
