
    George G. Baker, Respondent, v. Michael J. Donlin, Appellant.
    (Supreme Court, Appellate Term, First Department,
    January, 1915.)
    Landlord and tenant — ratification of lease — when reletting constitutes a surrender and acceptance by operation of law — evidence to sustain recovery for money paid for gas, electricity and telephone.
    One who occupies and pays the rent of an apartment leased in his name -by his authority ratifies the lease and is bound thereby though he was ignorant of its terms.
    A landlord’s reletting of premises vacated by the tenant constitutes a surrender and acceptance by operation of law in the absence of evidence sufficient to sustain a finding that such re- - letting was for the benefit of the tenant.
    In an action by a landlord to recover the difference between the rent reserved by a lease and the amount which a new tenant agreed to pay for the premises after they had been vacated by the original tenant, the defense of surrender and acceptance is ah affirmative defense which must be pleaded; it cannot avail to preclude a recovery by the landlord of the rent due at the reletting.
    Where the point that there was no competent proof to sustain a recovery for money paid by plaintiff for gas, electricity and telephone calls claimed to have been used by defendant was not taken at the trial, the recovery may be sustained on appeal where the defects of proof are merely technical.
    If the landlord could not relet the premises for the benefit of defendant, the original tenant, he could not recover for expense incurred in reletting.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, rendered in favor of the plaintiff.
    House, Grossman & Vorhaus, for appellant.
    Clarence Alexander, for respondent.
   Lehman, J.

The plaintiff brings this action for the difference betwen the amount of rent named in a lease and the amount at which the apartment was let to a new tenant after the premises were vacated by the alleged defendant lessee, for gas and electricity used during the occupancy and for money paid out for cleaning and advertising the vacated apartment and for brokerage in securing a new tenant. Substantially the answer is a general denial.

Plaintiff offered in evidence a written lease for seven months and signed “ M. J. Donlin by E. Hite ’ ’ and then gave oral testimony to the effect that he had never seen the defendant in his life; that Mrs. Hite, mother-in-law of the defendant, had signed the lease of the premises; that Mrs. Hite and defendant and his wife moved in; that defendant’s name appeared on the door-hell and receipts were made out in defendant’s name. 'Mrs. Hite paid him the rent and he gave her the receipts and that after defendant moved out he paid for cleaning, gas and electricity, telephone, advertising and brokerage bills and secured another tenant at twenty-five dollars a month less than defendant had agreed to pay. Stem, a witness for plaintiff, and owner of the apartment house in question, testified that he had let the premises to the plaintiff who. had sublet to defendant; that he saw defendant occupying the apartment and saw his wife and Mrs. Hite; that the name was not on the door-bell but on the dumb-waiter down stairs; that plaintiff authorized him to collect the rent while he was out of town and that he telephoned defendant one morning and asked for the rent: “ I said, ‘ I have an order from Mr. Baker to collect the rent; have you any objection to paying it to me? ’ He said 1 No ’, and I said, ‘ Can I see you this morning ’ and he said, ‘ No, I am going out of town but if you come up and see Mrs. Hite I will leave it with her. ’ He left it with her and I went up and got the money from Mrs, Hite.”

The defendant testified as follows: Q. When you were in the apartment, what did you know about the terms of your being there? A. I only know when I was here I was looking for an apartment at one time, my wife was very ill and we waited until they came back from the country. I remember going to look at several apartments and one was 520 W. 111th St.; it was Sunday and I had to go back to Pittsburg without knowing anything about it, and when I got back the following Sunday they had started to move in. Q. Did you know on what terms they were in there? A. No. I did not know on what terms they were there. 1 did not ask her. I wanted a good place to take my wife rather than take her to the hospital.”

Throughout the case it is clearly inferable that the defendant understood that he was liable for the rent as long as his wife lived there and that he regarded himself as the actual tenant. He accepted for himself the benefit of the hiring and if he knew the terms of the hiring and continued to occupy the premises without protest he ratified the lease. From his own testimony, it appears that he did not know the terms of the hiring because he did not ask or care what the terms were. Certainly, the evidence is sufficient to show authority on the part of defendant’s mother-in-law at least to negotiate for an apartment even if she did not have authority to enter into this particular lease. Under such circumstances the plaintiff was justified in believing at least that the agent would transmit to the principal a report of what she had done, and that then the principal would disaffirm the agent’s acts if he did not wish to ratify them. The principal knowing that' the agent had authority to negotiate for a hiring, and that she had assumed to hire an apartment for him, was put upon inquiry as to the terms of the hiring, and when he accepted the benefits of the hiring he may be presumed to have ratified the lease. See Sixty Wall Street v. Clevenger, 164 App. Div. 191.

I agree, however, in the contention that when the landlord relet the premises his act constituted a surrender and acceptance by operation of law, unless there was some evidence which would sustain a finding that the reletting was under an implied contract that such reletting should be for the benefit of the tenant. See Underhill v. Collins, 132 N. Y. 269, as explained in the case of Gray v. Kaufman Dairy & Ice Cream Co., 162 id. 388. In this case there is no evidence of such an implied contract, but on the other hand the defense of surrender and acceptance is an affirmative defense and not only was no such defense pleaded but the defendant at the trial moved only to dismiss the complaint and not for the direction of a verdict. Technically, therefore, the defendant is not entitled to' claim on an appeal that the defense of surrender and acceptance has been proven, for the' plaintiff might, if this point had been properly raised at the trial, have presented evidence to rebut the defense. In any event, however, even if we disregard this technical defect in the pleadings, the surrender and acceptance by operation of law occurs only at the time when the landlord creates an estate inconsistent with the demised estate. In this case, that act occurred only after the December rent was due, and the plaintiff was, therefore, entitled to that rent at least. See Dagett v. Champney, 122 App. Div. 254.

The appellant also raises the point that the plaintiff has recovered for moneys paid him for gas, electricity and telephone calls claimed to have been used by the defendant amounting to seventeen dollars and forty-three cents; for expense of cleaning and laundering amounting to four dollars; and for expenses of reletting the premises amounting to fourteen dollars and six cents, and that there is no competent proof to sustain these items. The defendant, however, failed to object to the proof presented and at no time pointed out any defects in such proof. Under such circumstances, the recovery of seventeen dollars and forty-three cents for gas, electricity and telephone calls can be sustained for the defects of proof are really technical, but the other items of damage cannot be sustained, for, if the plaintiff could not relet for the' defendant’s benefit, a fortiori he could not recover for the expenses of such reletting.

It follows that the judgment should he reversed and a new trial granted, with costs to the appellant to abide the event, unless the plaintiff stipulates within ten days to reduce his judgment to $167.43 with appropriate costs, in which event the judgment as modified, should be affirmed, without costs.

Delany and Whitaker, JJ., concur.

Judgment modified and as so modified affirmed, with costs.  