
    Everett E. Brubaker, Respondent, v. Mrs. S. L. James, Appellant.
    
      Correspondence as to leasing a fiat — when it does not create a completed contract.
    
    In an action to recover the rent of a flat, which the complaint alleged that the defendant leased for three months from July 1, 1900, it appeared that the defendant, a resident of New Orleans, published an advertisement in a Buffalo newspaper June 10, 1900, for “a furnished flat or house on west side to rent for two or three months.” The plaintiff, through his wife, replied by mail describing the flat, its furnishings, location and advantages, stating that they would rent the same “ for $85.00, payable monthly in advance.” The defendant replied, stating the number of persons in the family and giving a reference, adding that she was willing to pay the rent monthly in advance and that “ it is so hot here that I want to get the children to a cooler climate with as little delay as possible; so upon receipt of this, and if reference about us is favorable, and should you still desire us as tenants, will you kindly telegraph me O. O. D., naming earliest possible date that we can have possession. * * * I would want your flat until October 1st, for it is too warm to return south before then.” A day or two after receiving this letter the plaintiff’s wife telegraphed defendant: “Flat ready July 1st. Wire at once date you reach Buffalo.” The defendant did not reply to this telegram, and on her arrival in Buffalo refused to take the plaintiff’s flat. The defendant subsequently claimed that she had been misled as to the location of the flat.
    
      Held, that the correspondence failed to show that the minds of the parties met, or that there was any acceptance by the defendant of the plaintiff’s proposition.
    Appeal by the defendant, Mrs. S. L. James, from a jridgment of the Municipal Gourt of the city of Buffalo in favor of the plaintiff, entered in the office of said court on the 10th day of August, 1900, upon the decision of the court rendered after a trial before the court without a jury.
    
      
      Garitón E. Ladd, for the appellant.
    
      George G. Riley, for the respondent.
   Laughlih, J.:

The plaintiff has recovered in this action for one month’s rent of his furnished flat, 502^- Niagara street, Buffalo, N. Y., which the complaint alleges defendant leased for three months from July 1, 1900, but failed to take possession of or occupy. An answer was interposed containing a general denial. The defendant, a resident of New Orleans, advertised in the Buffalo Morning Express, June 10, 1900, for “ a furnished flat or house on west- side to rent for two or three monthsthree bedrooms required. Apply with full particulars to Mrs. S. L. James, No. 3004 Prytania Street, New Orleans, La.” Plaintiff’s wife, in his behalf, replied thereto by mail on the same day, describing said flat, its furnishings, location and advantages, and saying that “It is within two blocks of Fort• Porter and the Lake Front, one of Buffalo’s most popular parks,” and that they would rent “ for $35.00, payable monthly in advance,” but would be particular as to tenants on account of its being their home and never having been rented before. Defendant replied by letter on June nineteenth, stating of whom her family consisted and giving as a reference the name of a woman residing near plaintiff with whom defendant and her children had previously boarded, and saying:

“ If I took your home, I would endeavor to return everything in the same condition as received. My children are not destructive on furniture, and any home I would rent I feel sure would be returned in as good condition as received. I am willing to pay the rent monthly in advance. It is needless to ask if all arrangements of house is sanitary; I suppose, of course, that would be necessary. I like how you speak of your flat and think it -would be comfortable and horüelike. I do not wish to take anything pertaining to housekeeping with me for my articles are in use upon our plantation. We have friends in Buffalo, and it is so hot here that I want to get the children to a cooler climate with as little delay as possible; so upon receipt of this, and if reference about us is favorable, and should you still desire us as tenants, will you kindly telegraph me C. O. D., naming earliest possible date that we can have possession,' . for I hope to leave in about a week from now, possibly a little less than a week. If you have a trustworthy cook (general maid) I would very likely retain her, if you do not wish to take her with you. Assuring you again that the children will certainly not prove destructive tenants, I am,

“ Very sincerely yours,
June 19. Mbs. S. L. JAMES.
“ I would want your flat until October 1st, for it is too warm to return south before then.”

A day or two after receiving this letter, plaintiff's wife telegraphed defendant: “ Flat ready July 1st. Wire at once date you reach Buffalo.” Defendant did not reply to this telegram, but with her children arrived in Buffalo on June twenty-seventh and went to her former boarding house. Having been there informed that her letter was regarded by plaintiff’s wife as an agreement to take the flat she called on the latter that evening and disclaimed such intention. To this plaintiff’s wife replied that defendant’s letter was understood to* be an acceptance if satisfactory to plaintiff. Defendant was quite familiar with that part of the city within two blocks of the park known as the Front and Fort Porter, and on account of the ill-health of her children she looked upon that locality with favor. After coming to Buffalo she ascertained that plaintiff’s flat was four blocks- from the Front and six or seven from Fort Porter, and that there were saloons in its immediate vicinity, which, on account of her children, she deemed objectionable. Defendant did not state these objections at the interview on June twenty-seventh, but the next day she set them forth in a letter to plaintiff’s wife, adding that she had been misled as to the location of the flat. On the day following plaintiff’s attorney wrote defendant in substance that she had leased the flat and it was at her disposal from July first and that he was authorized to collect the rent. The foregoing is all the material evidence.

We are of opinion that plaintiff failed to establish a definite unconditional agreement on the part of defendant to lease his premises, and that she incurred no liability to pay rent therefor. The correspondence fails to show that the minds of the parties met so as to constitute a binding contract. There was no acceptance by defendant of plaintiff’s proposition. (Mahar v. Compton, 18 App. Div. 536 ; Templeton v. Wile, 22 N. Y. St. Repr. 251; Crooke Smelting & Refining Co. v. Towle, 37 id. 45 ; Mayer v. McCreery, 119 N. Y. 434.)

It follows, therefore, that the judgment should be reversed, with costs to appellant.

• All concurred, except MoLekhan, J., not voting.

Judgment reversed, with costs to the appellant.  