
    (48 Misc. Rep. 525)
    SECURITY TRUST & LIFE INS. CO. v. COGSWELL.
    (Supreme Court, Appellate Term.
    November 29, 1905.)
    Landlord and Tenant—Leases—Modification.
    After expiration of a lease providing for a yearly rental of $G00, and permitting its termination on 30 days’ notice, the same parties made a new lease of the property, omitting the provision as to termination and stipulating for a yearly rental of $650. Thereafter, when the only subject of conversation and the only subject of dispute was the amount of rent to be paid, the lessee insisting that the condition on which the increased rental had been agreed on had not been fulfilled, the lessor said that the lessee might go back to the old lease. Held, that this was merely an agreement to go back to the old lease as regards the amount of rental, and not as regards the provision for termination.
    fEd. Note.—For cases in point, see vol. 32, Cent Dig. Landlord and Tenant, § 93.]
    Appeal from Municipal Court, Borough of Manhattan, Sixth District.
    Action by the Security Trust & Life Insurance Company against Elizabeth N. Cogswell. From a judgment for defendant, plaintiff appeals.
    Reversed.
    Argued before SCOTT, P. J., and GILDERSLEEVE and Mac-LEAN, JJ.
    Blandy, Mooney & Shipman (Edmund L. Mooney and Laurence A. Sullivan, of counsel), for appellant.
    Cantwell & Moore, for respondent.
   SCOTT, P. J.

The plaintiff sues for "four months’ rent. The defendant held under a written lease under seal, dated February 3, 1904, for the term of one year, beginning May 1, 1904, "at a yearly rental of $650. Plaintiff concedes that at some time during the term it voluntarily reduced the rental to $600 and accepted payment of the rent at that rate, and now sues to recover at the reduced rate. The defendant had held a prior lease, also under seal, which expired May 1, 1904, at the yearly rental of $600, and which contained a clause, not incorporated in the lease of February 3, 1904, permitting either party to cancel the.lease upon 30 days’ notice. The defendant, in December, 1904, notified plaintiff that she elected to terminate her tenancy. Plaintiff refused to accept her surrender, and now sues for tl\e rent until the end of the term. The defendant’s allegation is that the lease executed on February 3, 1904, was canceled by the parties, and a new lease and agreement entered into by which the defendant was to have the premises at the yearly rental of $600 and to have all the .privileges mentioned and set forth in her former lease, including the clause providing for a cancellation of the lease on 30 days’ notice. The evidence wholly fails to sustain this plea. It appears that for the first two months of the term the defendant sent checks for her rent at the rate of $600 per annum, which plaintiff refused to receive, and begun proceedings to dispossess. Defendant then saw some one in plaintiff’s office, and insisted that plaintiff had not fulfilled a condition upon which the increased rental had been agreed upon, viz., to get rid of-another tenant to whom the defendant objected. After a while some one, not identified by the witness, said that she might go back .to her old lease.

The only subject of conversation at this time, and the only subject of dispute, was the amount of rent to be paid; and if we are to believe that any one used the words testified to by defendant, and are to assume (for, there is no proof) that the person who used them had authority to bind the plaintiff, .the utmost effect that can fairly be given to them is that plaintiff agreed to go back to the old lease so far as the amount of rental was concerned. There is nothing in the circumstance, nor in the language, to justify the conclusion that it was then agreed that the lease of 1904 should be wholly canceled, and the expired lease of 1903 revivified and reinstated. To sustain defendant’s contention it would be necessary to find, not alone that some of the terms of the lease, of 1904 had been modified, but that a new and valid lease had been made. Coe v. Hobby, 72 N. Y. 141, 28 Am. Rep. 120. The conversation testified to by defendant cannot reasonably be construed as .the making of a new lease, and, even if it could, there is not the slightest evidence that the person with whom she says she had the conversation' had authority either to make or modify a lease on behalf, of plaintiff.

■ It follows that the judgment must be reversed, and a new trial granted, with costs to appellant to abide the event. ...

GIDDERSLEEVE, J., concurs. MacDEAN, J., concurs in' result..  