
    John H. Timm, Respondent, v. J. G. Rose Co., Appellant.
    (Supreme Court, Appellate Term,
    September, 1897.)
    Agency — Promise of corporation to pay the rent of their debtor so long as he furnishes the money.
    Where the president of a corporation, which is a creditor of the assignee of a lessee, promises the landlord that “ they,” in view of the lessee’s indebtedness, will pay the landlord his rent 'as long as the lessee remains in possession, and also says that' “they” will protect “ themselves,” the promise is merely one that the corporation will, as the agent of the lessee, pay the rent so long as he furnishes it the necessary money; and upon proof by the corporation that the lessee no longer pays moneys to it for that purpose, the landlord cannot recover of it rent due and unpaid.
    Appeal by plaintiff from judgment of First Judicial District Court.
    Blackwell Brothers, for appellant.
    J. Callahan, for respondent.
   McAdam, J.

The plaintiff made a lease to one Elanney,of the premises Ho. 385 Bleecker street, at $90 a month,.which rental was subsequently reduced to $15 by plaintiff consenting to waive the difference on account of the Raines law. The date and term of the demise do not appear.

■ About July 12, 1896, the lease was assigned to James Mulligan, who went into possession and. occupied the premises, from that date during the period for which the rent sued for is claimed. After Mulligan took .possession, the plaintiff’s son called nn him for the rent, and was told to go to the defendant for it. He went to the defendant, and Mr.. Rose, the president of the corporation,, said in substance that “they” would pay the rent; that Mulligan was largely indebted, to his company, and. it Was to “their”, interest ...to see that, he remained in possession; that “ they ’’.would see the rent paid, and would pay it and protect “ themselves as.long as Mulligan was in the premises. The letter written by Rose, after the arrangement with him was made, may have been material to ¡corroborate the plaintiff and contradict Rose’s evidence concerning. its. terms, but it does not establish a corporate liability against the defendant. See Wood M. & E. M. Go. v, Pearson, 19 H. T. Supp. 485.

The defendant paid rent down to and including March, 1897, and the action is to recover the April and May rent.

In order to determine the defendant’s liability, we must ascertain what relation the defendant bore to the demised premises and the character of the obligation it intended to assume.

Elanney, as tenant, was liable on his agreement to pay, contained in the lease, and Mulligan as assignee on the privity of estate. The defendant was. never in possession of the premises, had no interest therein, and so .far as the evidence discloses, acted merely as Mulligan’s agent respecting the payment of the rent, paying it because he was its customer, and it wanted to continue his trade and collect what he owed it on merchandise account. Eose testified that Mulligan owed the defendant from $902 to $1,400; that Mulligan was in the habit of bringing to the company’s office from time to time different sums of money, some of which were credited on his account and others applied to the payment of the rent; that hi March, 1897, he game to the office and used vile language, whereupon Eose determined .to discontinue paying the rent and so informed the plaintiff. T'o construe the defendant’s relation to the transaction otherwise than as merely the agent of Mulligan would be to regard its act as a guaranty of payment of Mulligan’s debt, void by statute because not in writing. 2 R. S. (9th ed.), p. 1886, § 2.

Construing the defendant’s promise to pay in the light of the evidence, it means that so long as it acted as Mulligan’s agent and he furnished the money to discharge the rent, the defendant would pay it over to the plaintiff.

There is no proof that Mulligan furnished any money with which to pay the April or May rent.. He testified that, although he may have told Mr. Timm that he did give the defendant the April rent, such was not the truth and that the money paid by him to the defendant in April was in fact on merchandise account.

Under.the.circumstances it is difficult to find any.solid legal ground for holding the corporation liable for the rent, claimed, and the justice properly found for the defendant:

judgment affirmed, with costs.

Daly, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs.  