
    BROADWAY AND SEVENTH AVENUE R. R. CO. v. METZGER.
    
      N. Y. Common Pleas, General Term;
    
    June, 1891.
    1 Leased Under a lease with a privilege to lessee to remain for an additional term provided the owner did not want possession of the premises for building purposes, possession can only be resumed during the additional term in case the owner himself wants to build. Such additional term cannot be defeated by a subsequent lessee who has covenanted with the owner to-erect a building on the premises.
    2. The same.] A lease will be construed most favorably to the tenant.
    3. The same; notice of renewalJ Under a covenant in alease: providing that if the lessees desired to remain for an additional year, they must advise the owner or his agents of their intention to remain, it is sufficient for lessees to verbally notify the clerk of lessor’s agents, who had general charge: of the leased premises, of their intention.
    4. Principal and agentl\ Where a lease may be renewed on the: same terms by the lessee giving notice to the lessor’s agent, such agent may delegate his authority to receive notice to another, and such delegation of authority is presumed to be given to the agent’s clerk who takes entire charge of the leased premises.
    Appeal from a judgment in favor of defendants rendered in the third Civil District Court of New York city,, upon the verdict of a jury in summary proceedings to. recover possession of demised premises upon the alleged expiration of the lease.
    The premises were leased by James McCreery to the defendants, Louis Metzger & Co., for a specified term with a privilege of remaining for an additional term provided that “the owner did not desire possession of the premises for building purposes,” and that the lessees. should advise the “ owner or his agents ” of their intention to stay not later than a certain date. McCreery subsequently leased the premises to the plaintiff, the Broadway and Seventh Avenue Railroad Company, the latter covenanting to erect a building on the premises. The further facts are fully stated in the opinion.
    
      Osborn E. Bright, E. Randolph Robinson and William Sulzer, for appellant:
    I. Notice of tenant’s intention to-remain to the clerk of lessor’s agent was not sufficient (Citing Edwards v. Dooley, 120 N. Y. 540 ; Martin v. N. F. P. Mfg. Co., 122 Id. 174; Bickford v. Menier, 107 Id. 490; Harrison v. Burlingame, 48 Hun, 212; Boyd v. Vander Kemp, 1 Barb. Ch. 273; Shankland v. Washington, 5 Peters [U. S.] 395).
    II. The contract should be construed according to the practical interpretation of the parties (Citing 2 Parsons on Contracts [6 Ed.], 493 ; Chicago v. Sheldon, 9 Wall. 50; Stapenhorst v. Wolff, 35 N. Y. Super. 25 ; Reading v. Gray, 37 Id. 79; Stokes v. Recknagel, 38 Id, 368 ; Bishop on Contracts, § 412 ; Insurance Co. v. Dutcher, 95 U. S. 269, 273 ; Woolsey v. Funke, 121 N. Y. 92).
    
      William. H. Arnoux and C. N. Bovee, for respondents:
    I. The election of lessee was property signified (Citing Tracy v. Albany Exchange Co., 7 N. Y. 472).
    II. The lease must be construed in favor of the tenant (Citing Doe v. Dixon, 9 East, 15 ; Foltz v. Huntley, 7 Wend. 214; Windsor Hotel v. Hawk, 49 How. Pr. 262 ; Todd v. Weber, 95 N. Y. 181 ; Hartley v. Harrison, 24 Id. 170 ; Union Dime Savings Bank v. Wilmot, 94 Id. 221 ; 46 Am. Rep. 137).
   Bischoff, J.

The lease, dated November 4th, 1889, was made by McCreery, as lessor, and respondents as lessees, and demised the premises for one year, from February xst, 1890, to February 1st, 1891, and contained the following provision: “ And the said tenants have the privilege of remaining for one year more, viz. ; from February ist, 1891, to February 1st, 1892¡provided the owner does not desire possession of the premises for building purposes.

When the lease was entered into, Mr. McCreery was the owner of the premises therein described, and it does not appear that at that time the lessees were aware of any contemplated change of ownership or of any project of building upon the premises by persons other than the owner. The only reasonable interpretation, therefore, which could be given the language quoted is that it comprehended a possible desire on the part of McCreery to resume possession for the purpose of erecting buildings then remotely contemplated by him.

This is its plain and obvious import, the sense in which it is most favorable to the lessees and therefore the sense which must be held to control (Lowber v. Le Roy, 2 Sandf. 202; Dwight v. Germania Life Ins. Co., 103 N. Y. 341 ; Hoffman et al. v. Ætna Fire Ins. Co., 32 Id. 405 ; White v. Hoyt, 73 Id. 505 ; Johnsons v. Hathorn, 2 Abb. Ct. App. Dec. 469). McCreery’s desire to gain •possession, not for himself, but for a third person, as .his subsequent lessee, who has covenanted to erect "buildings which, upon the expiration of his lease, are to revert to the lessor, cannot be regarded as having been •in the contemplation of the parties at the time when •the lease between McCreery and the respondents was ■entered into, except upon a distorted process of reasoning, and is not within the operation of the clause above mentioned. That McCreery did not desire possession dor himself to enable him to carry out his own building projects, was made conclusively apparent upon the trial ¡from the lease introduced in evidence, by which he granted a leasehold estate therein to the appellant for •the term of forty-two years, commencing immediately •upon the expiration of the term originally demised to the respondents, thus depriving himself of the right to ■claim possession ; and from the further fact that the negotiations for that lease commenced in September, 1890, by which is manifested an absence of desire to resume possession.

Nor is there any force in the contention of appellant’s ■counsel that the evidence taken upon the trial in the ■court below fails to show notice by respondents of their election to continue their lease for the additional year :as required, pursuant to its terms. The lease provided that should the lessees desire to remain in possession for a further year they “ must advise the owner or his agents of their intention so to stay not later than November 1 st, 1890.” Both Metzger and Schiff, the respondents, testified that before November 1st, 1890, they gave oral notice of such election to one Louis Phillips, a clerk in the employ of L. J. and I. Phillips, the agents •of McCreery, while upon the demised premises in the 'business of his employers.

If Louis Phillips was ■ authorized to receive notice for his employers, oral notice was sufficient, as no particular form of notice was prescribed by the lease (McEwen v. Montgomery Co. Mut. Ins. Co., 5 Hill. 101). But appellant contends that this notice was ineffectual, first, because L. J. and I. Phillips could not delegate their authority to receive it to a clerk, and second, that, though the power to delegate be conceded, it does not appear that Louis Phillips was .authorized by his employers to receive such notice.

Both grounds are erroneous. The giving of notice by the respondents at once extended the existing lease ■over the additional year; no further lease was needed ; no assent on the part of the lessor or his agents to the ■extension was required, and the refusal by the lessor or his agents to receive notice could not have impaired the respondent’s right to the extended term (House v. Burr & Spencer, 24 Barb. 525). The receipt of respondents’ notice of election was thus an act purely mechanical, requiring the exercise of neither judgment or discretion, and it is well settled by authority that the. performance of such acts may be delegated by an agent, to another (Grinnell v. Buchanan, 1 Daly, 538; Commercial Bank of Lake Erie v. Norton, 1 Hill, 501 Weaver v. Carnall v. American Rep. 22; Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117, 123; Powell v. Tuttle, 3 N. Y. 396; Lewis v. Ingersoll, 3 Abb. Ct. of App. Dec. 60, Story on Agency, § 14, etc). The law does not fail to recognize the fact that in the great variety of human affairs and the complex nature of business enterprises the execution of matters of detail must in a great, measure rest upon persons employed in subordinate-capacities, and the rule delegatus non potest delegare is, therefore, never extended tc the employment of servants in the performance of merely ministerial or mechanical duties (Smith’s Master and Servant, 299), and a clerk” is a servant whose authority to act for his master is to be measured and ascertained by the law generally applicable to the relation of master and. servant (Wood’s Master and Servant, §2).

The evidence was abundant to show that. Louis Phillips was authorized by his employers to receive respondents’ notice of election to extend their lease for the additional year, It was not necessary to establish that fact by specific instructions to Louis Phillips to receive the particular notice under consideration, but his authority to receive it can be inferred from the extent of his employment (Smith's Master and Servant, 275 ; Wood’s Master and Servant, § 267 ; Story on Agency, § 56). Louis Phillips, examined as a witness for appellant, says that in part performance of his duties he assumed “ general charge ” of the particular premises occupied by the respondents, and this implies that he was authorized to represent his employers in all matters connected with the premises to the extent to which they could lawfully delegate their own authority to him, including, as above shown, the receipt of respondent’s notice.

Again, the course of business dealing between L. J. & I. Phillips and the respondents, clothed Louis Phillips with apparent general authority to represent his employers in all matters connected with the demised premises which could be lawfully delegated to him. In all their transactions concerning the demised premises and until some time after the oral notice to Louis Phillips, 'the respondents had never met the lessor or either of his agents. They were throughout represented by Louis Phillips. It was Louis Phillips with whom the negotiations for the lease under which respondents were in possession were had. It was from him they learned the conditions upon which the lessor had consented to make a lease to them, and it was to him they stated their assent to the terms finally agreed upon. He attended the execution of the lease by the respondents, received delivery of it for the lessor or his agents, and on behalf of the lessor or his agents made delivery of the copy executed by the lessor in exchange. He collected the rents. He received notice from the respondents of needed repairs, reported the same to his employers, and in turn informed the respondents of his employers’ decision respecting the repairs, and at the notice Louis Phillips was upon the demised premises in the business of such repairs representing his employers. These facts fully justified the respondents in assuming that Louis Phillips was authorized to receive notices affecting the demised premises intended for his "employers, and in the absence of all evidence tending to show that the respondents, at the time of giving the particular notice under consideration, had knowledge .that the authority of Louis Phillips did not extend to its receipt, his want of authority in that respect cannot ■be subsequently asserted to effect a loss to the-respondents of the benefits intended to be secured by the notice (Goodrich v. Thompson, 44 N. Y. 333 ; Leslie v. Knickerbocker Life Ins. Co., 63 Id. 27, 33).

We have carefully examined the exceptions taken by appellant to the rulings upon the trial, as well as those to the justice’s charge and refusals to charge, but as we-construe the material clauses of the lease to the respondents, and from the view which we entertain of the power of McCreery’s agents to delegate their authority to-receive notice of respondents’ election to Louis Phillips, their clerk, it does not appear that appellant has sustained any harm from the errors alleged.

The verdict was in accord with justice and consistent with the law and the evidence, and the judgment is. affirmed, with costs.

Allen, P. J., concurred.  