
    Charles E. Fleming et al., Appellants, v. Martin F. Ryan et al., Respondents.
    (New York Common Pleas
    Additional General Term,
    December, 1894.)
    A mere instruction to a tenant to pay certain arrears of rent to an agent whose sole duty it is to collect rents and ask tenants if they wish to remain another year, is not a confirmation or ratification of a new lease claimed to have been made by such agent.
    A verbal agreement to lease premises which is understood to be executory merely, and to require the execution of a written lease, does not constitute a lease of the premises.
    Appeal from a final order in summary proceedings made by the justice of the District Court in the city of New York for the first judicial district.
    
      Moses Wem/mam,, for appellants.
    27". M. Oeseheidt, for respondents.
   Bischofe, J.

Upon the former appeal in this proceeding (Fleming v. Ryan, 9 Misc. Rep. 496) we held that the evidence taken upon the trial failed to support the various theories whereby the defendant Johanna Ryan sought to justify the final order awarding her the possession of the premises, and it is now claimed that the testimony given upon the second trial supports the similar order thereupon made, and from which the landlords have taken this appeal.

The record of the first trial was by stipulation made evidence in the second, and upon this evidence the plaintiffs rested their case in chief.

The defense which, upon the first trial, this court held to have been unsuccessfully attempted, proceeded upon the theory that a verbal lease of the premises in question had been given to the tenant defendant either by the landlords’ agent, Burnham, or by their agent, Place, and the case turned upon the nature of the conversations had with the former and the lack of authority in the latter to make leases.

It is contended by the respondents’ counsel that the transactions had with Burnham were shown by the defendant Johanna Byan’s testimony, as now given, to have resulted in the making of a lease, but in view of the testimony given by Burnham at the first trial, which upon the former appeal we held to be deserving of credit rather than that of the defendant, and the direct contradiction by this witness, Byan, of her previous testimony, taken together with the evasive character of her answers upon cross-examination and her failure to in any way explain the inconsistencies noted when confronted with them, we unhesitatingly hold the weight of the evidence upon this issue to be with the appellants.

With regard to the claim that the alleged lease from Place was confirmed by Burnham, it suffices to say that, crediting the tenant’s testimony, it appears merely that she was instructed by the latter agent to pay certain arrears of rent to the former, and this clearly had not any such effect as that contended for, neither did it intend the ratification of any acts beyond the scope of that agent’s customary duties, of which the receiving of rent was one.

The claim is also made that the tenant had obtained a lease of the premises from the firm of Beadleston & Woerz, to which firm a lease had been given by the agent Burnham after the date of the conversation had with him by her, and it certainly appears that some transactions were had between these parties, although there is a conflict between the testimony of Johanna Byan and of the plaintiffs’ witnesses as to what the exact particulars of the agreement were.

However, it very clearly appears from the evidence that this tenant, Byan, understood this agreement, whatever its terms, to be executory merely; that the execution of certain papers, whatever she took to be their nature, was an essential part of the transaction ; that a written lease was to be produced and executed, and that the verbal negotiations but looked to the final execution of that instrument according to the terms considered.

Moreover, at the time of these negotiations Beadleston & Woerz had obtained no lease of the premises from the plaintiffs, having merely been promised one, and it was when they had obtained the lease as expected that the completion of their agreement with the defendant was offered by them and refused by her.

In view of the facts of this litigation these circumstances are found to have much significance upon the probabilities of the case.

What would have been the effect of a positive agreement of lease made between the third parties and the defendant, under the circumstances noted, it is unnecessary now to state, since it is clear to us upon the evidence that no such agreement resulted.

Our conclusion is that the preponderance of the evidence upon the whole issue was with the appellants, and that the determination of the court below is not to be supported.

Final order reversed, with costs, and new trial ordered.

Gtiegerioh, J., concurs.

Order reversed and new trial ordered, with costs.  