Goodfield Realty Co. v. Wormser

125 N.Y.S. 521

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 11, 1910
• Status: Published

Opinion

BIJUR, J.

The sole issue in this action was whether in June, 1909, the defendant had renewed for a term of one year from October 1, 1909, his then existing lease. Defendant contends, in substance, that his interview resulted merely in an offer to renew the lease in future, and that the terms of the renewal were not completely agreed upon. As evidence in support of this interpretation of the transaction, he points to the fact that, after the conversation at which the renewal is alleged to have been made, plaintiff sent defendant a written lease to be signed, and he excepts to the exclusion by the trial court of his letter in reply, in which he declined to sign the lease, because of the alleged failure on plaintiff’s part to have had certain undesirable tenants previously removed.

I find, however, that the trial court was fully justified in holding, on the evidence, that the conversation in June amounted to a renewal of the lease in praesenti. The terms of the renewal were fully understood. Defendant himself, in reply to an appropriate question, says, “The same terms as the year before.” Thus this case is clearly distinguishable from that of Arnold v. Rothschild, 37 App. Div. 564, 56 N. Y. Supp. 161, where the terms of the lease were left unsettled. Moreover, it differs equally from Sherry v. Proal, 131 App. Div. 774, 116 N. Y. Supp. 234, since in that case, apart from other circumstances indicating the absence of an agreement in przesenti, the defendant, during the conversation, significantly said, “well, give me a one year’s lease—send me down the lease,” indicating that the oral agreement then arrived at should subsequently be embodied in a formal written lease. On the other hand, the mere fact that plaintiff here subsequently sent a formal lease for defendant’s execution does not impair the character of the previous conversation as a complete understanding; for, as the Court says in the Arnold Case, supra, at page 569 of 37 App. Div., page 161 of 56 N. Y. Supp., an oral contract, in praesenti, may be enforced, although there may be a stipulation of the understanding -that a more formal contract shall be executed.

In view of the trial court’s determination that the lease was closed and completed in June, plaintiff’s letter of July was properly excluded. At the best, it amounted to no more than his statement that he declined to execute a formal lease, because plaintiff had violated what was either some term of the lease or some collateral agreement as to the eviction of certain tenants; but, as I have intimated, it was not part of the res gestae, but a mere self-serving declaration.

Finally, defendant insists that the fact that, after his abandonment of the premises, plaintiff relet them to some one else, without expressing in the new lease that it acted as his agent, is determinative to the effect that plaintiff did not regard him as tenant. But the execution by a party of a paper in his own name is in no way material evidence that he has not, in the transaction, acted as the agent of another. Blum v. Munzesheimer, 66 Hun, 633, 21 N. Y. Supp. 498¹.

As there has been a technical error in calculating the amount of the judgment, as is conceded by both sides, it will be modified, by -deducting $105, $100 thereof being the amount of rent received by plaintiff for account of defendant, and $5 corresponding costs; and, -as so modified, the judgment is affirmed, with costs. All concur.

1 Reported in full in the New York Supplement; reported as a memorandum decision, without opinion, in 66 Hun, 633.