
    Henry Walder, Respondent, v. Bridget English, Appellant.
    Second Department,
    March 31, 1910.
    Evidence —landlord and tenant — when lease executed hy agent without authority admissible —money had and received.
    In an action to recover rents paid in advance under a lease which the defendant claimed had been executed by her husband as her agent without authority, the lease and receipts for the money paid are admissible in evidence although the plaintiff proved no written authority in the husband, for they_ are competent to show the foundation for the payment of rent by the plaintiff.
    Where in such action it appears that the husband had authority to lease part of the building and that he received the advance rent in the defendant’s presence and with her approval, and she subsequently refused to give the plaintiff possession, the jury may find that there was an implied promise hy her to return the money unless she complied with the conditions of the lease under which she received it.
    Burr, J., dissented.
    Appeal by the defendant, Bridget English, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of said county on the 28th day of May, 1909, upon the verdict of' a jury, and also from an order entered in said clerk’s office on the lltli day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Joseph W. Middlebrook \_Ellery E. Albee with him on the brief], for the appellant.
    
      Michael J. Tierney and Walter G. G. Otto, for the respondent.
   Woodward, J.:

The plaintiff brings this action to recover damages alleged to have been sustained by reason of a breach of contract on the part of the defendant, for the lease of certain premises in Dobbs Ferry. The complaint alleges in substance that the defendant, acting through her husband, James English, as agent, entered into a contract with the plaintiff for the leasing of certain hotel premises in Dobbs Ferry at an annual rental of $900, to be paid monthly in advance, the term being five years; that the plaintiff, at the demand of the defendant, paid $300 upon such rental, and in July, 1907, at the beginning of the term, demanded possession of the premises, which was refused, and continued to be so refused up to the time of the commencement of the action. The complaint demanded judgment ■ for $25 per month during, the term and for the $300 paid in advance upon the rental. The answer put all of' the material allegations of the complaint in issue, and .it developed upon the trial that, the defendant had not authorized her husband in Writing to enter into the lease for a term of years, and, upbn defendant’s motion to, dis^ miss the complaint, the motion was granted in so far as it related to the damages- alleged for failure to place the defendant in possession of. the' premises, but was denied in so far- as. it involved the $300 paid in advance, upon such lease. This question was fairly litigated, and there Was evidence to show that the plaintiff paid a portion of the $300- to the defendant’s husband in her presence, and after a conversation in which the defendant had declared herself as-being satisfied with the lease, and the defendant herself admits that,she did not make any complaint in the premises until, she discovered that her husband had exceeded his authority and had. attempted to lease the entire building instead of a portion of it. Thé learned court charged the jury that the action “ is brought by the plaintiff, Henry Walder, against Mrs. Bridget English to recover the sum of three hundred dollars. There yva,s another claim embodied in the pleadings at the outset of the case, but the case has taken such a turn as that by mutual consent there is only one question to be submitted to you,, and that relates to whether- or not this.defendant shall pay back to the 'plaintiff the sum of three hundred dollars, which was passed from hand to hand on the 11th day of June, 1907.” There was ho exception to this part of the charge, and the record indicates that certain amendments to the pleadings, which are .not set forth were allowed, with directions! that'they be inserted in the judgment roll. These were doubtless for 'the purpose of conform, ing.' the pleadings to the cause of action actually litigated. We think the introduction of the lease and certain receipts in evidence, the lease being executed by James English, was not error,. The complaint alleged the making of a contract in behalf of the defendant bv her husband,. James English, and the defendant denied this. It. was. proper to show that a contract of the nature alleged in the complaint had been made, as one of the steps in: showing that it was done in behalf of the defendant, and when the plaintiff, failed to show that tha authority was in writing, as was necessary under the statute, he failed to establish, this much of the cause of action alleged, but it was competent as showing 'the foundation for the payment of the $300, and when the defendant admitted that James English had some authority, and it was shown that he received the $300 in her presence and with her approval, and that she refused to give the plaintiff possession under the lease, there was evidence from which the jury were entitled to find that the $300 belonged to the plaintiff; there was an implied promise on the part of the defendant to return the same unless she complied with the conditions of the lease under which she came into possession of the sajne. As has been well said she was not entitled to keep both the premises and the money which had been paid to her as the' rental of such premises.

The judgment and order appealed from should be affirmed, with costs. . ■

Jenks, Thomas and Rich, JJ., concurred ; Burr, J., dissented.

Judgment and order of the County Court of Westchester county affirmed, with costs..  