
    Charles E. Fleming et al., App’lts, v. Martin F. Ryan et al., Resp’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed August 1, 1894.)
    
    1. Lease—Agreement.
    An agreement to give a lease, after certain conditions as to security were complied with, which were never performed, is not a lease.
    2. Principal and agent—Authority.
    Where the apparent nature of an agent’s duties admit of their delegation to one in the capacity of clerk or servant, no implication that an act involing the exercise of discretionary powers was authorized, can be raised therefrom.
    8. Evidence—Principal and agent.
    Agency cannot be established by the declarations of the agent.
    Appeal from a final order in summary proceedings, made by the justice of the district court in the city of Hew York for the first judicial district, awarding possession of certain premises to' the tenant defendant
    
      Moses Weinman, for app’lts ; H. M. Gescheidt, for resp’ts.
   Bischoff, J.

By answer to a petition in summary proceedings for defendant’s dispossession from certain premises, it was set up that the tenant Johanna Ryan, held under a lease made by plaintiffs to certain parties, she being the tenant under a sub-lease from the latter. Upon the trial, this defense was totally abandoned and it was sought to be shown either that the tenant had been given a lease by one Burnham, plaintiff’s agent, or failing this, that a lease had been given verbally by one Place, claimed also to have been such an agent, to Martin Ryan and by him assigned to her. It appears clearly from the tenant’s testimony that no lease was

ever made to her by Burnham, for from the conversation had between the parties in that regard, crediting defendant’s evidence, a consent to give a lease, after certain conditions as to security were complied with, alone resulted, and these conditions were never performed. Upon this question, also, the weight of the evidence is with the plaintiffs, the tenant’s story as to the making of a lease being in no way corroborated and directly contradicted by the witness Burnham, whose testimony is to be given the greater credit in view of the serious discrepancies appearing between the tenant’s verified answer upon the one hand, and her statements on the trial upon the other. Siefke v. Sieflce, 5 Misc. Rep. 406 ; 55 St. Rep. 388 ; Brown v. Sullivan, 1 Misc. 161; 48 St. Rep. 685. The judgment in defendant’s favor must find support, if at all, upon the verbal renewal lease claimed to have been made by the agent,Place with Martin Ryan, and assigned to this tenant, and, giving credit to the evidence adduced by defendants upon that issue, the question turns upon the agency of Place, express or implied, to make the lease in question. It is undisputed that Place had never made a lease on,behalf of the plaintiffs, that he had no authority so to do and that his only duties, with regard to the tenants, were to collect the rent and, at or near the expira- • tian of existing leases, to question the tenants as to their desire to retain the premises for another year. The duties in question were purely ministerial, involved the exercise of no discretion or judgment and no claim is made that prior to the occasion in question had the agent assumed to enlarge the scope of his agency, and this with the plaintiff’s acquiescence. The apparent nature of this agent’s duties admitted of their delegation to one in the capacity of clerk or servant, and no implication that an act involving the exercise of discretionary powers was authorized could be raised therefrom. Broadway & S. Av. JR. R. Co. v. Metzger, 39 St. Rep. 846. Thus the agency here relied upon finds its sole support upon the statements of the agent, as testified to by defendants, made in the course of this particular transaction, but agency is not thus to be established; Sier v. Bache, 7 Misc. R. 165 ; 57 St. Rep. 494. The judgment should therefore be reversed and a new trial ordered, with costs to appellants to abide event. Book-stayer, J., concurs.  