
    (16 App. Div. 458.)
    PECHE v. SLOANE.
    (Supreme Court, Appellate Division, First Department.
    April 23, 1897.)
    Principal and Agent—Evidence of Agency.
    A lessee is justified in dealing with the owner’s husband' as the owner, where such owner purchased a few days after the lease was executed, and the lessee was not.informed thereof, and had all his subsequent dealings with the husband, paying rent to and taking receipts from him, and therefore the acceptance of a surrender by the husband discharges the lessee.
    Van Brunt, P. J., dissenting.
    Appeal from trial term, New York county.
    Action by Joseph Peche against Joseph B. Sloane for rent. From a judgment entered on a verdict in favor of defendant, plaintiff appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and RUMSEY, WILLIAMS, PATTERSON, and PARKER, JJ.
    Samuel D. Sewards, for appellant.
    M. M. Forrest, for respondent.
   PARKER, J.

“I collected the rents. I didn’t always turn them over to her. I collected the rents and disbursed them on account of her property, and that which I didn’t disburse on account of her property X turned over to her. X have accounted to her. I don’t know that I accounted for all.”

His right to represent her fully in dealing with this property is sufficiently indicated by this testimony of Gage, whose purpose, nevertheless, in going upon the witness stand, was to make his alleged misrepresentation of his authority the basis of mulcting $2,500 out of this defendant for the benefit of either the witness or his wife. Indeed, his effort to bring about a recovery for rent of premises not occupied, at his solicitation, makes it quite difficult to believe that he advanced $500 to secure possession of the premises without authority. It is more likely that he knew he was so acting as that he could secure a reimbursement to that extent. The conduct of Mrs. Gage, in the light of all these acts of her husband, presented, we think, a situation which authorized a jury to find, as an inference of fact, that Gage acted for his wife in procuring the possession of the premises from the defendant.

It is true that the defendant did not execute a deed of surrender, but there was a surrender by operation of law. Gage, with authority to represent the principal, as we must now assume, not only asked the defendant to give up his lease, but offered to pay, and did pay, him $500 for doing so. As a further inducement, Gage entered into an agreement with Sloane not to permit the premises to be used for a period of two years for the carrying on of the same business as that in which Sloane was engaged. Sloane executed and delivered to Gage an assignment of his lease. After-wards, and at the time agreed upon, he vacated the premises and delivered up the key, which was accepted. Thus became executed the agreement to surrender, which is held to be a surrender by operation of law. Wood, Landl. & Ten. § 497; Tayl. Landl. & Ten. § 515.

The judgment should be affirmed, with costs.

RUMSEY, WILLIAMS, and PATTERSON, JJ.,_ concur. VAN BRUNT, P. J., dissents.  