
    John Dobson et al., Pl’ffs, v. August Kuhnla, Impl’d, Def’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 18, 1892.)
    
    1. Principal and agent—Tenants in common.
    One tenant in common of an apartment house cannot bind the others by any contract to purchase carpets for the halls or other supplies for the building or by authority given to an agent to procure the same.
    9. Same—Evidence of usage.
    , In an action against a tenant in common of such a building to recover for carpets purchased by one to whom defendant had given no authority to do scij evidence of a usige to carpet the halls and stairways of apartment houses is inadmissible.
    Exceptions ordered to be heard in the first instance at the general term in an action to recover the price of goods sold- and delivered.
    
      Leavitt, Wood & Keith (John Brooks Leavitt, of counsel), for pl’ffs; Foley & Powell, for def’t.
   Barrett, J.

We cannot understand why the exceptions in this case were directed to be heard in the first instance at the general term. The plaintiffs made out no case against the defendant Kuhnla, and they were properly nonsuited. They attempted to hold him as part owner of the apartment houses Nos. 14 and 16 West Sixty-fifth street, for the price of certain carpets which were purchased by one Porter and laid upon the hallways and stairways of these houses. No authority upon the part of Porter to purchase these goods was proved. Direct proof of authority is not claimed, but the court was asked to infer authority from Porter’s other acts with regard to the premises, such as renting apartments, purchasing coal for the premises, giving directions, employing the janitor, paying the watchman, etc. But there was no proof that any of these acts were done under Kuhnla’s authority, and, if they were done under the authority of one of the other tenants in common, that would not bind Kuhnla. A tenant in common is not like a partner who has power to make contracts for the partnership. His rights as tenant in common are distinct, and, in the absence of an express authority, he is not responsible for what another tenant in common does as to the property owned by both. Corning v. Iron & Nail Factory, 39 Barb., 325; Mc-Oready v. Freedly, 3 Rawle, 251. We may add that there was no proof that Porter’s acts were done under authority of any of the tenants in common, except, possibly, Porter’s wife, who seems to - have been present when he purchased the carpets. In Howard 'v. Norton, 65 Barb., 166, the court, speaking of the rule that an agent’s authority may be inferred from acts of a kind similar to that done in the case in which the proof is sought to be made, observed that “ the acts from which the inference of authority is sought to be drawn must be acts done under authority of the principal.” The present case is barren of proof on both heads. The agency was wholly unproved, and, of course, the declarations of the assumed agent were inadmissible. People's Bank v. St. Anthony's Church, 109 N. Y., 512; 16 St. Rep., 856 ; Deck v. Johnson, 1 Abb. Ct. App., Dec., 500. The evidence of a usage to carpet the halls and stairway of apartment houses^was properly excluded. As well might the heating apparatus or the elevator or the gas fixtures or coal and wood be included in such a custom. Whether it was customary or not to furnish these things, a tenant in common is surely not liable unless he purchased the goods or authorized some one to purchase them. The exceptions should be overruled, and judgment ordered for the defendant, with costs.

All concur.  