Irvin v. Cohen

Appellate Terms of the Supreme Court of New York

Irvin v. Cohen

109 N.Y.S. 169

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 5, 1908

StatusPublished

This text of 109 N.Y.S. 169 (Irvin v. Cohen) 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

Irvin v. Cohen, 109 N.Y.S. 169 (N.Y. Ct. App. 1908).

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BISCHOFF, J.

These judgments must be reversed for error in the exclusion of evidence offered to support the defense of fraud. The actions were brought for successive installments of rent under a written lease, accruing after the defendant’s abandonment of the premises, and the abandonment was sought to be justified as upon a rescission by the tenant for false representations affecting the occupancy. The lease was executed for the landlord by “Slawson & Hobbs, Agents,” and the defendant endeavored to prove the making of the representations upon the part of the individual who apparently acted for this firm in the negotiations which preceded the acceptance of the tenancy. This individual, Rodenbach, was called as a witness on behalf of the defendant, and certain questions were asked him which called for facts relative to his actual duties in his employment by Slawson & Hobbs, and the apparent scope of his agency; but the evidence called for was excluded.

Necessarily the defense depended upon the authority of Rodenbach in the matter of the negotiations for this lease, and, if his agency were sufficiently broad, his representations would bind the principal. He was a competent witness as to the facts from which. the extent of his authority would appear (Brown v. Cone, 80 App. Div. 413, 81 N. Y. Supp. 89), and, while it may be that his authority was of a restricted character, this was not a matter which could be determined arbitrarily, as a question of law, from the mere fact that the witness was not the firm of Slawson & Hobbs. For all that the defendant was permitted to show, Rodenbach’s duties may have been of a character comprehensive of every step in the negotiations which the firm, had been empowered to undertake, through its employés, to further the business of its principal, and we cannot assume that enough would not have been proven to bring the alleged representations within the reasonable scope of his actual or apparent agency. The respondent’s suggestion that the rescission was too long delayed to be available as a defense overlooks the fact that the time within which the tenant could properly disaffirm would depend upon the character of what was represented and the period required to determine its falsity. As the proofs were restricted at the trial in such wise as to exclude the fact that representations were made, we cannot properly determine that a period of four months was unreasonably long for disaffirmance upon discovery of the facts.

Judgments reversed, and new trial ordered, with costs to appellant to abide the event.

GILDERSLEEVE, P. J., concurs.

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BISCHOFF, J.

These judgments must be reversed for error in the exclusion of evidence offered to support the defense of fraud. The actions were brought for successive installments of rent under a written lease, accruing after the defendant’s abandonment of the premises, and the abandonment was sought to be justified as upon a rescission by the tenant for false representations affecting the occupancy. The lease was executed for the landlord by “Slawson & Hobbs, Agents,” and the defendant endeavored to prove the making of the representations upon the part of the individual who apparently acted for this firm in the negotiations which preceded the acceptance of the tenancy. This individual, Rodenbach, was called as a witness on behalf of the defendant, and certain questions were asked him which called for facts relative to his actual duties in his employment by Slawson & Hobbs, and the apparent scope of his agency; but the evidence called for was excluded.

Necessarily the defense depended upon the authority of Rodenbach in the matter of the negotiations for this lease, and, if his agency were sufficiently broad, his representations would bind the principal. He was a competent witness as to the facts from which. the extent of his authority would appear (Brown v. Cone, 80 App. Div. 413, 81 N. Y. Supp. 89), and, while it may be that his authority was of a restricted character, this was not a matter which could be determined arbitrarily, as a question of law, from the mere fact that the witness was not the firm of Slawson & Hobbs. For all that the defendant was permitted to show, Rodenbach’s duties may have been of a character comprehensive of every step in the negotiations which the firm, had been empowered to undertake, through its employés, to further the business of its principal, and we cannot assume that enough would not have been proven to bring the alleged representations within the reasonable scope of his actual or apparent agency. The respondent’s suggestion that the rescission was too long delayed to be available as a defense overlooks the fact that the time within which the tenant could properly disaffirm would depend upon the character of what was represented and the period required to determine its falsity. As the proofs were restricted at the trial in such wise as to exclude the fact that representations were made, we cannot properly determine that a period of four months was unreasonably long for disaffirmance upon discovery of the facts.

Judgments reversed, and new trial ordered, with costs to appellant to abide the event.

GILDERSLEEVE, P. J., concurs.

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109 N.Y.S. 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/irvin-v-cohen-nyappterm-1908.

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