Feust v. Craig

Appellate Terms of the Supreme Court of New York

Feust v. Craig

109 N.Y.S. 742

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 10, 1908

StatusPublished

This text of 109 N.Y.S. 742 (Feust v. Craig) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Feust v. Craig, 109 N.Y.S. 742 (N.Y. Ct. App. 1908).

Pincite

Opinion

DAYTON, J.

Upon the former appeal (App. Term, Nov., 1907; 107 N. Y. Supp. 637) in this case a judgment for the plaintiff was reversed. In its opinion the court said:

“It seems to us, upon the whole Case, that the interests of justice would be best served by a new trial, where the status and authority of Mrs. Murphy can be made to appear more definitely, and more light on what took place when the keys were delivered to her. If it be shown that she was the agent of the plaintiff, who, it will be remembered, rarely visited the premises himself, and that she fully and distinctly accepted the surrender as such agent, an important alteration in the situation would be created thereby.”

On the former trial plaintiff was called as a witness. On this trial, although plaintiff and Mrs. Murphy were in court, neither was called. Therefore defendant’s testimony as to the delivery of the keys to and their acceptance by Mrs. Murphy, and the subsequent placing of the sign “To Let” upon the premises, is .unchallenged. There is no suggestion in the record that plaintiff repudiated the authority of Mrs. Murphy in receiving the keys, and therefore his acquiesence may be presumed. Defendant’s testimony shows- that he moved out of the premises April 30, 1907, and gave the keys to Mrs. Murphy, “the janitress,” from whom he had received them, saying: “As you [she] were the agent I [he] got the keys from, I have returned them and surrendered the place. She said, ‘All right.’ ” On cross-examination he said: “She said she was the agent when I went there.” About March 25, 1907, and again on April 11, 1907, defendant wrote plaintiff that he would remove from the premises on or before 12 m. on May 1st. To these communications the record does not show any reply, nor any demand until this action was brought, July 1, 1907. This silence for two months, taken in connection with plaintiff’s efforts to rent the premises by showing them, tends to prove a ratification of Mrs. Murphy’s agency in the acceptance of the surrender. Defendants established a prima facie case, and the motion to dismiss should have been granted.

Judgment reversed, and complaint dismissed, with costs. All concur.

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DAYTON, J.

Upon the former appeal (App. Term, Nov., 1907; 107 N. Y. Supp. 637) in this case a judgment for the plaintiff was reversed. In its opinion the court said:

“It seems to us, upon the whole Case, that the interests of justice would be best served by a new trial, where the status and authority of Mrs. Murphy can be made to appear more definitely, and more light on what took place when the keys were delivered to her. If it be shown that she was the agent of the plaintiff, who, it will be remembered, rarely visited the premises himself, and that she fully and distinctly accepted the surrender as such agent, an important alteration in the situation would be created thereby.”

On the former trial plaintiff was called as a witness. On this trial, although plaintiff and Mrs. Murphy were in court, neither was called. Therefore defendant’s testimony as to the delivery of the keys to and their acceptance by Mrs. Murphy, and the subsequent placing of the sign “To Let” upon the premises, is .unchallenged. There is no suggestion in the record that plaintiff repudiated the authority of Mrs. Murphy in receiving the keys, and therefore his acquiesence may be presumed. Defendant’s testimony shows- that he moved out of the premises April 30, 1907, and gave the keys to Mrs. Murphy, “the janitress,” from whom he had received them, saying: “As you [she] were the agent I [he] got the keys from, I have returned them and surrendered the place. She said, ‘All right.’ ” On cross-examination he said: “She said she was the agent when I went there.” About March 25, 1907, and again on April 11, 1907, defendant wrote plaintiff that he would remove from the premises on or before 12 m. on May 1st. To these communications the record does not show any reply, nor any demand until this action was brought, July 1, 1907. This silence for two months, taken in connection with plaintiff’s efforts to rent the premises by showing them, tends to prove a ratification of Mrs. Murphy’s agency in the acceptance of the surrender. Defendants established a prima facie case, and the motion to dismiss should have been granted.

Judgment reversed, and complaint dismissed, with costs. All concur.

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Bluebook (online)

109 N.Y.S. 742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feust-v-craig-nyappterm-1908.

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