
    John Boyce Smith, Appellant, v. Vincenzo Caputo, Respondent.
    (New York Common Pleas
    Additional General Term,
    August, 1895.)
    Evidence that a person is connected in business with another is no proof of a general agency.
    Mere, proof of-an agreement to give a lease, followed by the'drawing of a lease which did not include the premises in suit, and which was never executed, is not sufficient to show an agreement to lease the premises in question.
    Appeal from a final order of the District Court in the city of Hew York-for the second judicial district, made in favor of the undertenant in summary proceedings to recover the possession of land.
    
      Chas. A. Hunk, for appellant.
    
      Willimn E. Cook, for respondent.
   Bischoff, J.

The sole issue litigated upon the trial in this proceeding was as to the existence of an oral agreement of lease for one year of the premises Ho. 197|- Worth street.

' -The respondent, Caputo, had been in possession of the premises Hos. 197 and 197| Worth street as undertenant of one Moriarity, whose lease from the original owners of the property expired May 1, 1895, after which date the appellant claimed that Caputo unlawfully held possession of Ho. 197^-. - Ho question was raised -with regard to his possession of Ho. 197.

On behalf of the respondent it was shown, that one, James Z. Smith promised him a lease of the house” at a rental of eighty dollars a month when he (Smith) got his Seed.” As a matter of fact James Z. Smith never obtained a deód of the property, it having been sold- to- the appellant at auction, and the latter thereafter took title.

Moreover, there was no proof of agency in James Z. Smith to make any contract of lease for filie appellant; hence, no question of-' estoppel, as relied upon by the respondent, appears in the case. The only evidence in this regard was that the appellant and James Z. Smith were “ connected in business.”' This, of course, was no sufficient proof óf a general agency. No subsequent ratification by the appellant is predicable of' James Z. Smith’s acts, since it does not appear that the latter-assumed to act for the former. Kirchner v. Schmid, 7 Misc. Rep. 455, 460.

The remaining evidence in support of the defense was that, after the appellant took title he personally agreed to give “ the-lease” at eighty dollars a month, and at that time, in the-respondent’s presence, drew a lease of the premises No. 197 Worth street, which lease the respondent took away with him for examination. That instrument was never executed by either party, and, furthermore, was repudiated by the respondent because it did not embrace the premises 197£.

It thus appears that there was a complete failure of proof" that .the appellant at any time agreed to lease the premises in , suit, 197J Worth street, to the respondent. The respondent, failed to show that these premises were in the contemplation of both parties, and the appellant’s understanding was clearly set forth in the written proposed lease, drawn at the time of the alleged oral agreement. The aggregatio mentium essential to a valid contract was conspicuously wanting.

Final order reversed and new trial ordered, with costs to-the appellant to abide the event: ,

Giegerich, J., concurs.

Final order reversed and new trial ordered, with costs to-appellant to abide event.  