Burgess v. Willis

43 Misc. 672, 88 N.Y.S. 149

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1904
• Status: Published

Opinion

Gbeeitbaum, J.

The tenant resisted the summary proceedings instituted by the landlord upon the ground that he was in possession of the premises under a subsisting valid lease made with the landlord, through her duly authorized agent. The premises in question consisted of an entire building occupied as a livery stable. The tenant had been lessee of said building for a number of years, but always under written leases.

His last written lease expired on February 1, 1904. The testimony of the tenant is to the effect that, prior to the last-mentioned date, he made repeated requests of a Mr. Beam, who it is asserted was the agent of the landlord, for a renewal of the lease for another year; that Beam had promised it to him in December; that, on the eighteenth or nineteenth of January, on the occasion when Beam called to collect rent, the following conversation ensued: “ Where is my lease? he (Beam) replied ‘that is all right, old man, I will bring it around to youI said ‘ that is not the question, I want it,’ he said ‘ you are all right, you have got the place for another year, you need not worry yourself, I will bring the lease around.’” On January twenty-sixth, the tenant was notified in writing by the landlord that she had sold the premises and that the tenant would be required to give up possession on February 1, 1904. No written lease was ever executed and the tenant claims that, the acts of Mr. Beam operated as a renewal lease binding upon the landlord, for the year ending February 1, 1905, upon the same terms as the last prior lease.

The reputed agency of Beam was predicated upon the following facts: That he collected the rents- for the landlord, that he had been the intermediary in effecting previous leases; that, while in charge of other properties of the landlord, he occasionally, in her absence, effected monthly lettings in tenement-houses at rentals previously fixed by her and that, after receipt of the notice that possession of the premises was demanded on February 1, 1904, the tenant called upon the landlord at her residence and handed her the rent for February which she refused to accept, stating in substance “ Why do you come here? Why don’t you go to my agent ? ” The testimony of the landlord and of Mr. Beam is unqualifiedly to the effect that the latter had never had authority to make a lease, that he was solely a collector of rents and attended on his own responsibility to emergent repairs upon tenements.

While it may be doubted, under the authority of Franke v. Hewitt, 56 App. Div. 499, whether, in the case of the renting of an entire building, a lease was in fact created by a mere promise of a lease for another year, where nothing was said as to any terms, either as to the amount of rent or otherwise, but where everything was left to the surmise or inference that the terms were to be precisely the same as those of the prior lease, it seems to me that there is no proof of the authority of Mr. Beam to bind the plaintiff.

His dealings with the tenant in reference to the premises in question were not such as to indicate an agency for leasing the building, and the landlord’s statement to go to “ her agent,” when the tenant called upon her with rent after he had been notified tha^ his tenancy would terminate on February 1, 1904, constituted no such facts or circumstances from which an inference might be drawn that Mr. Beam was in fact the agent of the landlord to lease. The situation presented at most what proved to be an unrealized expectancy on the part of the tenant. There was no- legal proof of agency and the motion for a direction of a verdict in favor of the landlord should have been granted.

The final order is reversed and a new trial granted, with costs to the appellant to abide the event.

Freedman, P. J., and Leventbitt, J., concur.

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