
    Charles Ottoman, Appellant, v. Edward E. Gardner, Respondent.
    (Supreme Court, Appellate Term,
    January, 1897.)
    Estoppel — Representations as to lease.
    On the sale of certain property the agent of the owner represented to the plaintiff that defendant had a léase until the following October, at $65 a month, when in fact his lease only ran to June,, at $55 a month. The agent informed defendant of such representation and gave him $70 to make up the difference in the rent, and defendant-thereafter paid the plaintiff rent at $65 until June, when he left the premises, Held, that as defendant by his acts ratified and confirmed the representation of the agent he was chargeable to the same extent as if he had made it hirfiself, and was estopped from denying the existence of the lease as represented.
    Appeal by the plaintiff from a-judgment of the Sixth District Court in favor of the defendant, with costs'.
    Action to recover $227,50. for rent of an apartment in No. 65 "West Seventieth street from the 15th- day of June, 1896, to the' 1st day of October, 1896, at $65 per month, with interest.
    
      Bowers & Sands, for appellant. ■
    Whitman, Fitzgerald & Ives, for respondent.
   Daly, P. J.

The defendant hired from one Denton, through his agent Flanagan, in September, 1895, an apartment in No. 65 West Seventieth street, in the city of New York. In February, 1896, Denton sold the premises to the plaintiff Ottoman. ■ On June 15, 1896, defendant vacated the apartment. This action is brought to recover rent at the rate of $65 per month from the last-named date to October 1; 1896, upon the allegation that defendant had leased the premises from Denton for one year from October 1, 1896, at the yearly rent of $780, payable monthly.'

The defendant denied the lease as alleged and claimed that he was a monthly tenant at a rental of $55 per month commencing on “September 15, 1895, and that his tenancy terminated upon his removal on June 15, 1896. There was a conflict of evidence as .to whether the lease was for one year or by" the month, but there was no question that the. rent as fixed was $55 per month and not $65. The finding of the justice in favor of the defendant establishes that the lease was by the month; but the plaintiff claims that the defendant is estopped from denying the tenancy as claimed in the complaint.

The estoppel is based upon substantially, the.following facts: Prior to the sale by the original landlord Denton to the plaintiff in February, 1896, the agent Flanagan went to the defendant and told him of thé intended sale, and that it had been represented to the prospective purchaser that the defendant had a lease until October 1, 1896, at the monthly rent of $65, and the agent persuaded the defendant to accept the sum of $70, with which to make up every month, for the seven succeeding months to October 1st, the full sum of $65 to be paid to the new landlord. The defendant at first objected to the representation as made, but upon being afterwards- informed by the agent that “ the deal could not go through and that he-had'better take the money,” accepted the $70 and thereafter, and until he moved out in June, paid to the agent of the new landlord $65 per month. When he moved out he offered the- unused portion of the $70 back to Flanagan, who refused to receive it. ■.

The evidence malees out a plain case for thé application of the rule that one who has made a representation bf fact which' hé hás reason to believe would influence the- conduct of another shall not be permitted to deny the fact as represented to the prejudice of the party who has acted upon the representation. It was shown by the evidence of Flanagan that he sold the premises to the plaintiff representing to him that the defendant had a lease as claimed in the complaint, and the defendant himself testified as follows: “ Mr. Flanagan said to me, ‘ Doctor, we have sold this place and we have told the owner that you have a lease until the 1st of October, and that you are paying $65 a month; ’ I said, ‘ Well, I am not going to pay $65; ’ ‘Well,’ he said, ‘I tell you what I will do; I will give you the $10 a month until your term is up; you pay $65 and I will hand you the $10 for each month; ’ and he said, ‘ You had better take the full amount from now until the 1st of October, because I have told him you are going to stay until then; ’ I said, ‘You have no business to do that; I don’t intend to stay.’ He met me in the hall next day and said, ‘ This deal cannot go through,’ or something to that effect, ‘you had better take this money.’ *. 4 * Q. He paid you $70?" A. Yes," sir. Q. And he paid you that, telling you that you could pay it to Mr. Ottoman? A. That I pay Mr. Ottoman $65 a month and that I would have the $10. Q. And that that would ratify what he had said to the plaintiff? A. Yes. Q. You took that $70, didn’t you? A. Yes, sir; but I positively refused to have anything to do with it.”

.It was proved by Crusius, the agent of the plaintiff, that the defendant paid him rent after the plaintiff took possession, beginning in March, 1896, and that such payment was $65 per month.

As the defendant expressly ratified .and confirmed the act of Flanagan in representing that his lease extended to October 1st and was at the rental of $65 per month, he is chargeable to the same extent as if he had made such representation himself to the new • landlord in order to induce him to purchase the premises. His accepting the money was with the intention of confirming the representation as made, and preventing the discovery.of the fraud by the purchaser and lulling him into security, and he affirmativelv took part in the deception by paying at the rate of $65 while he stayed in. The evidence warrants the inference that the representation of Flanagan as to this lease was made before the plaintiff concluded his purchase and was the inducement to the purchase; also that the" defendant knew of such representation before the purchase was completed. But even if he was informed of the false representation after the plaintiff had acted upon it, but then ¡became a party to a scheme by which the purchaser would be -confirmed in his impression that the representation was. true and was thereby misled to his prejudice, an estoppel will be equally well -established. Upon the facts of the case it was manifest that the -defendant should have been held to the terms of the lease as represented, with his concurrence, to' the plaintiff, and"-that judgment should have been given in favor of the latter.

■ Judgement reversed, and a new trial ordered, with costs to appellant to abide the event.

. McAdam and Bischoef, JJ., concur.

Judgment reversed, and new trial ordered, with costs to appellant to abide evént.  