
    Henry C. Everdell, Plaintiff, v. William T. Carrington, Defendant.
    First Department,
    January 3, 1913.
    Principal and agent — employment of agent to sublet — no authority to change terms of payment — when payment to agent not payment to principal.
    Although a tenant employed the agent of her landlord as her own agent to sublet, which she was entitled to do, and he executed a sublease by Which the rent was payable to him as agent, that gave him no authority to change the terms of the lease.
    Hence, where the agent induced the tenant to pay rent to him in advance, in consideration of a discount, and converted the sums received to his own use, the principal may recover the rent of the sub-tenant.
    .As the sub-tenaht knew the- terms of the lease, on paying in a manner not provided for therein he was bound to know the authority of the agent . to receive payment, and he made it at his peril.
    Submission of a controversy upon an agreed statement of facts,, pursuant to section 1279 of the Code of Civil Procedure.
    
      Julien T. Davies, Jr., for the plaintiff.
    
      Nicholas Danforth, for the defendant.
   McLaughlin, J.:

The plaintiff’s assignor, one Kate Reed, has a ninety-nine-year lease, with the right to sublet, of an apartment in a building owned by a corporation. For some time prior to July, 1904, and continuously thereafter until about May 17, 1910, one John ■ Cleary was the manager and superintendent of, and had his: office in the building, and in such capacity was in the employ of the corporation, haying general charge of all parts of thus building, except such apartments therein as were held under ninety-nine-year leases, of which there were several. Each lessee of an apartment under a ninety-nine-yeár lease had the entire and exclusive control over his particular apartment, but a number of them, including Mrs. Reed, turned over to Cleary, while acting as manager and superintendent of the corporation, the renting of their respective apartments, and in doing .so he acted as their agent and not for the corporation. On the 26th of March, 1907, Oleary, acting as the agent of Mrs. Reed, who lived in Montreal, leased to the defendant her apartment for a term of three years from the 1st of October, 1907, at an annual rental of $4,000 per year. The lease was in writing and provided that the rent stipulated to be paid should be payable in equal monthly instalments on the last day of each month until the expiration of said term at the office of the party hereto of the first part [John Cleary, as agent of Kate Reed] No. 121 Madison Avenue in the said City of New York, and said tenant hereby agrees to pay said rent at the times and in the manner hereinabove provided. ”

Cleary was dismissed from the service of the corporation on the 17th of May, 1910, and some time between that date and the expiration of the lease Mrs. Reed learned for the first time that Cleary had collected in advance from the defendant the rent — which he had not turned over to her—for the months of December, 1909, January, February, March, April, May and June, 1910, amounting in all to $2,333.33. This sum has not been paid to her or her assignee, although the same was demanded from the defendant prior to this submission.

The payment óf the rent ih. advance was brought about ■ without the knowledge of Mrs. Reed by Cleary’s giving to the defendant certain discounts upon advance payments. The defendant, in. accepting the discount and making the advance payments, acted in good faith, but without any inquiry, except from Cleary, to ascertain the latter’s authority. The question submitted for decision is whether the plaintiff is entitled to recover from the defendant the advance payments of rent above stated, together with interest from the time the several installments fell due, or whether the payment by defendant to Cleary relieves him from any further payment.

I am of the opinion that the plaintiff is entitled to recover. Cleary had no real or apparent authority from Mrs. Reed to discount or accept payment of any installment before it became due. The defendant knew the terms of the lease and that it provided for the payment of the monthly installments on the last day of each month, and in the lease he agreed to pay the rent “ at the times and in the manner hereinabove provided.” The fact that Cleary had executed the lease, as agent for Mrs. Reed, conferred upon him no authority to thereafter change its terms.

As was said in Smith v. Kidd (68 N. Y. 130): “No authority to change the terms of the contract can be implied from the fact that it was originally made through the attorney, and there is no evidence in this case of any such authority.”

The defendant, as said, knew the terms of the lease, and when he paid in a manner different from therein provided, he was bound to know the authority of Cleary to receive the sum paid; otherwise he paid at his peril. The general rule is that a party dealing with an agent must ascertain the extent of the powers delegated to him and “ must abide by the consequences if he transcends them.” (Porges v. U. S. Mortgage & Trust Co., 203 N. Y. 181; Craighead v. Peterson, 72 id. 279.) "While Oleary had authority to execute the lease, and receive payment of the rent in the manner therein provided, he had no actual or implied authority to receive it in advance at any other time or manner than as stated in the lease. (Story Agency [9th ed.], § 98; Clark & Skyles Agency, § 277.)

The court, speaking of advance payments to an agent, in Doubleday v. Kress (50’N. Y. 410) said: “Nor can the agent receive pay otherwise than according to the terms of the obli-' gation. If the debtor pay before due the principal, the payee is not bound; ” and in Smith v. Kidd (supra):- “Even though an agent have authority to" receive payment of an obligation, this does not authorize him to receive it before it is due.” (See, also, Schermerhorn v. Farley, 58 Hun, 66.) Oleary’s authority to receive the payments in question, of course, could not be established by showing prior similar transactions without showing that Mrs. Reed had knowledge of them. (Bickford v. Menier, 107 N. Y. 490; Baldwin v. Burrows, 47 id. 199.)

My conclusion, therefore, is that the plaintiff, is entitled to judgment against the defendant for the sum of $2,333.33, being the rent for the months of December, 1909, January, February, March, April, May and June, 1910, together with interest on each, installment from the time the same became due.

Ingraham, P. J., Clarke, Sgott and Dowling, JJ., concurred.

Judgment ordered for plaintiff as directed in opinion. Order to be settled on notice.  