
    Morris Arnold and Milton S. Arnold, Comprising the Firm of M. Arnold & Co., Appellants, v. The R. Rothschild’s Sons Company, Respondent.
    
      Lease—what evidence does not establish it—unverified letters.
    
    In an action brought to recover rent due upon an alleged lease, it appeared that the defendants, being authorized by an Ohio corporation to obtain for it a lease of property in New York city, conferred with a real estate agent in regard to a certain store, and after objecting to pay a rental of §5,500, finally told the agent that if he could get the store at §5,000 they would take it and authorized him “ to close it.” Subsequently the agent had an interview with one of the plaintiffs, and the same day sent a letter to the defendants in which he said : “ I have closed the lease for you as directed with Mr. Arnold * * * at §5,000 rental, payable monthly.”
    The messenger received from one of the defendants a memorandum, signed by A. M. Rothschild, in these words : “ Yours rec’d. Mr. R. is satisfied.”
    There was no proof of the nature of the conversation had between the agent and the plaintiff prior to the sending of this letter, nor of any agreement on the part of the latter to reduce the rent or to make any lease at all.
    
      Held, that, upon the evidence, the transaction between the defendants and the plaintiffs could not be considered to constitute a lease ;
    That if the contents of the letter were to be regarded as referring to the conversation with the plaintiff they availed nothing as proof, in the absence of their verification, under oath by the agent.
    Appeal by the plaintiffs, Morris Arnold and another, comprising the firm of M. Arnold & Co., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of March, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of March, 1896, denying the plaintiffs’ motion for a new trial made upon the minutes.
    This appeal was transferred from the first department to the second department.
    
      Nathan Ottinger, for the appellants.
    
      Benjamin N. Cardozo, for the respondent.
   Willard Bartlett, J.:

This is an action to recover two months’ rent, upon an allege^ lease for one year, of certain premises on Broadway in the city of New York. The defendant corporation interposed a general denial to the complaint. The agent through whom the lease was said to have been made was a real estate broker named Leon Tannenbaum, and the evidence in behalf of the plaintiffs to prove the contract consisted chiefly of his testimony and certain correspondence between him and Messrs. A. M. & David Rothschild, who represented the defendant corporation in New York.

As to the correspondence there was no dispute, but there was a direct conflict of evidence as to what had passed between Tannenbaum and the Rothschilds orally, David Rothschild positively denying that he was present at certain interviews in which Tannenbaum swore that he participated. The proof upon the trial related chiefly to two questions: First, whether the Rothschilds were authorized to negotiate and enter into a lease for the defendant corporation; and, secondly, what actually was said between' them and Tannenbaum with reference to the contemplated hiring of the premises occupied by the plaintiffs. In the view of the learned trial judge, the oral and written evidence offered in behalf of the plaintiffs, even taken alone, was such as to afford support to conflicting inferences, and he therefore referred it to the jury to say not only whether the Rothschilds, or either of them, had authority to bind the defendant by entering into a lease in its behalf, but also whether what occurred between the Rothschilds and the plaintiffs actually constituted a lease, or merely amounted to an agreement to enter into a lease at some future time.

Much of the argument of the learned counsel for the appellants is based upon the proposition that where the language used by the parties to an alleged contract is not the subject of dispute, the interpretation and construction of that language is a question for the court and not for the jury. Many cases are cited to this effect, and, on the other hand, the learned counsel for the respondent finds high authority for submitting to a jury questions as to the meaning to be given to the language employed by parties to a contract, where that language is equivocal and its interpretation may depend upon - the relations of the persons by whom it was used and upon other surrounding circumstances.

It does not seem to me necessary, however, to determine whether the trial court in the present case was right in applying the first of these rules instead of the second, for I do not think the evidence for the plaintiffs was sufficient to sustain a verdict in their favor in any event.

Stating the plaintiffs’ case as favorably as the record will warrant, it amounts to this: The Rothschilds being authorized by the defendant, an Ohio corporation, to obtain a lease of property for it in the city of New York, conferred with Leon Tannenbaum, a real estate broker, for that purpose, and talked with him about taking a store at No. 472 Broadway. The rent was mentioned as being $5,500 a year, but the Rothschilds wanted it reduced below that sum. Tannenbaum said he thought that if they would submit an offer for $5,000 he could get the store, to which they responded that if he could get the store at $5,000 they would take it, and they authorized him “to close it.” Tannenbaum conferred with Mr. Arnold (presumably one of the plaintiffs) shortly afterward, and, on the same day, wrote and sent to the Rothschilds a letter addressed to the defendant corporation, in which he said: “ I have closed the loase for you, as directed, with Mr. Arnold, of store and bas., 472 Broadway, for one year from February 1st, 1892, at $5,000 rental, payable monthly.” The messenger who took this letter received from one of the Rothschilds, for Mr. Tannenbaum, a memorandum in writing, signed by A. M. Rothschild, in these words : “Yours rec’d. Mr. R. is satisfied.”

Now, if, in addition to this, there was any proof in the case that Tannenbaum actually had seen the plaintiffs, or either of them, and actually had made the agreement with them set out in his letter to the defendant corporation, there would be great force, I think, in the argument that the transaction amounted to a complete lease. As matter of fact, however, there is no such evidence in the record. Tannenbaum does not anywhere swear that the plaintiffs ever agreed to reduce the rent to $5,000, or, indeed, to make any lease at all, nor is- there any testimony to that effect from any other source. He does say that he conferred with Mr. Arnold, but he tells us nothing about what occurred in that conference; and if the contents of his letter are to be regarded as referring to it, they avail nothing as proof for they lack the sanction of any verification under oath.

This omission seems to me fatal to the success of the plaintiffs upon the present appeal. No material evidence offered in their behalf was excluded, and giving to that which was admitted the most favorable interpretation, the complaint should have been dismissed.

I am in favor of the affirmance of the judgment and order appealed from.

All concurred.

Judgment affirmed, with costs.  