
    No. 121 Madison Avenue, App’lt, v. John C. Osgood, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed March 7, 1892.)
    
    1. Landlord and Tenant—Evidence of release of tenant.
    Defendant was lessee of premises for a term which expired September 15, 1889, with a privilege of renewal. Desiring to surrender his lease for the summer months, he so wrote the landlord’s agent, who replied that he had an opportunity to rent the flat for the summer, and several years longer, if he would surrender his privilege of renewal, and asking for a reply by telegraph, to which defendant answered in the affirmative. The agent thereupon leased the premises from September 15, 1889, failing to include the summer months as agreed. Mela, that defendant was relieved from his obligation to pay rent for the summer months.
    2. Same—Agreement to terminate.
    The second lease executed by the landlord, in pursuance of the agreement between his agent and defendant, operated as an express termination of the latter’s lease.
    3. Same—Ratification of agent’s act.
    The landlord was bound by the acts of his agent, through subsequent ratification, in accepting the waiver he procured from defendant and acting upon it.
    Appeal from a judgment of the general term of the city court, affirming a judgment of the trial term, entered upon the verdict of a jury in favor of defendant.
    The action was for rent of apartments in the house 121 Madison avenue, owned and managed by the plaintiff corporation, and claimed to be due for the months of May, June,” July and August, 1889, at §225 per month, and for the first half of the month of September, 1889, at the same rate, under a written lease of said apartments for the term of eighteen months, commencing March 15, 1888, and ending September 15, 1889. The lease contained a covenant that the lessee should have a renewal thereof for a year from the last named date on the same terms, provided he gave notice of election to take such renewal on or before July 15, 1889.
    
      Lowery, Stone & Auerbach (Joseph M. Keating, of counsel), for app’lt; James StUceman, for resp’t.
   Daly, Ch. J.

The defendant was lessee of the premises for a term of eighteen months, which expired September 15, 1889, with a privilege of renewal, at his option, for one year from the latter date. Mr. Oleary was the manager of the house for the plaintiff, and in January, 1889, defendant told him that he expected to go abroad with his family about the last of April or 1st of May, and wished to get a tenant for his apartments for the summer months, and would be glad to give them up entirely if he could be relieved of the rent for the summer months. Cleary said there would be no difficulty; he was satisfied he could get a tenant. Shortly after defendant went to Colorado, and while there received a letter from Cleary, dated January 25, 1889, saying that he had an excellent opportunity of renting the apartment to a lady to whom he had explained that defendant had a right to the renewal of a year from September 15, 1889; that this did not suit her at all, for, as she very correctly said, if between May 1st and September 15th, defendant should change his mind about vacating, he would have the right to resume possession at a time when, to use her own expression, she would be very • nicely settled; and as she w'ished to stay settled for a number of years, she did not wish to take any such risk; so, to settle any doubts of that nature, Mr. Cleary suggested that defendant write to him as manager, saying that he did not wish to exercise his right of renewal from September 15, 1889, or a private notice that he desired to give the corporation possession of his apartments on September 15, 1889.

Defendant answered by a letter of January 29, 1889, asking which way the matter was to be arranged, stating he supposed the person taking his apartment would take an assignment of his lease, or that his lease could be surrendered to the owners and a new lease executed direct to the tenant; that the question as to his exercising his option need not stand in the way for, if necessary, he would remove it as Mr. Cleary suggested. In reply he received á telegraphic message from Cleary dated February 2, 1889, acknowledging his letter and requesting him to telegraph that he did not wish to avail himself of option. To this, defendant, on February 5, 1889, telegraphed Cleary, “I do not wish to avail myself of option to extend lease." The plaintiff thereupon, about February 11, 1889, executed to-Mrs. Farrington, the lady referred to by Mr. Cleary, a lease of the apartments, not from May 1,1889, but from September 15, 1889, leaving them unlet for the period for which defendant had desired to be relieved from rental. This action is brought to recover rent for that period from defendant, who claims that the effect of the transaction is to relieve him from the obligation to pay it. I think that his contention can be sustained.

The defendant surrendered his rights to a renewal upon the understanding conveyed by the letter and telegram of Cleary that there was a tenant ready to lease the apartment from May 1st, if she could also have it for the renewal period, and that defendant's waiver was required to effectuate that transaction. An agreement, therefore, on plaintiff’s part to make such a lease, and consequently to terminate defendant's lease on May 1st, might be inferred from the circumstances, and is, in fact, the only possible inference from the facts. The defendant’s lease could be terminated at any time by agreement "between him and the landlord ; it was not necessary that such agreement should be express; it might be inferred from the conduct of the parties. Bedford v. Terhune, 30 N. Y., 453.

The point taken by appellant, therefore, that defendant could ■only be released from the rent by the agreement of the plaintiff, ¡and that there was no evidence of such agreement is fully met by ■the proof which authorizes, if it does not require, the inference ■of such an agreement, founded upon good consideration, and subsequently executed by the lease to a third party of the premises for the period covered by the renewal covenant. Tallman v. Earle, 37 St. Rep., 271. Much stress is laid upon the fact that the defendant admitted that no contract was made by Cleary in the interview with him in January, and that this negatives the defense of agreement pleaded. But the answer sets out an agreement with plaintiff and the proof warrants such inference from the transactions at and about the time specified in the pleadings. The claim subsequently made by defendant, when he discovered what he characterized as the deceit practiced by Cleary, that he was still entitled to exercise his option for a renewal and claimed such renewal, does not in any respect estop him. The agreement had then been made and executed and he could not rescind. TTia conduct might be proper for consideration by the jury if there was a question as to whether an agreement had been made ; but the facts are undisputed, and the inference from them inevitable.

There can be no question that plaintiffs are bound by the acts of Cleary, through subsequent ratification in accepting the waiver he procured from defendant, and acting upon it. It was the duty of Cleary to communicate to his principals under what arrangement it was procured. In the absence of evidence to the contrary the presumption is that duty was performed. Meehan v. Forrester, 52 N. Y., 277; Bank v. Davis, 2 Hill, 464.

The judgment should be affirmed, with costs.

Bischoff, J., concurs.  