Davies v. . Mayor, Etc., of City of New York

Andrews, J. The tenancy of the premises for the rent of which this action is brought was initiated under a written lease from the plaintiff to the board of supervisors for the term of one year from May 1, 1872. They were hired for the use of the recorder as his chambers, and he entered into possession and continued to occupy them until about July 1, 1877, when *253 he removed to a city building in Chambers street. The key, however, of the plaintiff’s premises was not delivered to him, nor did the plaintiff resume possession until after May 1, 1878, By the written lease the stipulated rent was $2,000 a year, payable quarterly. This action is brought to recover rent at the rate stipulated in the lease for the year commencing May 1, 1877. It is urged as a complete defense that the holding over by the recorder after May 1, 1877, was without the authority of the city, and did not operate as a renewal of the lease. We think this defense cannot be sustained. That the tenancy originated under a lawful hiring, and that the lease was renewed from year to year by the holding over of the recorder until May 1, 1877, was determined in the prior action between these parties. (83 N. Y. 207.) It is claimed that the holding over by the recorder after that time was unauthorized by reason of the resolution of the common council of December 26, 1876, assigning rooms in the city building for his use. But the resolution of December 26, 1876, did not contemplate an immediate occupation of the new chambers by the recorder. They were not then ready for occupancy, and were not so ready until about August 1, 1877. The resolution, after setting apart cer tain rooms in the city building for the use of the recorder, directs the commissioner of public works “to give notice and make provision accordingly.” There was nothing in the action of the common council to indicate that it designed to terminate the occupancy of the plaintiff’s premises before the new chambers were ready. It was' the duty of the city, if it desired to terminate the lease, to surrender possession. This it did not do. It (or its predecessor in interest) put the recorder in possession. It continued him in possession for several years after the expiration of the original lease. The plaintiff had a right to assume, in the absence of notice, that his remaining in possession after May 1,1877, was by the authority or acquiescence of the defendant, and to treat it as a renewal of the lease for another year. The general rule is unquestionable that a municipal corpora *254 tion is not bound by the unauthorized act of an individual, whether an officer of the corporation or a mere private person. But the corporation may so deal with third persons as to justify them in assuming the existence of an authority in another, which in fact has never been given. The city in this case, as has been said, put the recorder in possession, allowed him to continue in possession for years, using the plaintiff’s premises as a court-room, and this possession continued after May 1, 1877, in the same way as for the years before. Under such circumstances an affirmative duty rested on the city to surrender .the possession, or at least to notify the plaintiff before a new year was' entered upon that the tenancy would not continue, in order to terminate the lease. But we are of opinion that the judgment in the former action entered upon the offer of the defendant, is a bar to the recovery of rent for the two quarters embraced in the complaint in that action. This conclusion does not rest upon the ground that the question of the right to recover rent for the two quarters ending November 1, 1876, was adjudicated adversely to the plaintiff in that action. It clearly was not; but it rests upon the ground that a general offer of judgment accepted, upon which judgment has been entered, concludes the party accepting it from bringing a new action for any part of the claim embraced in the complaint, and which might have been litigated in the action. The offer, under the Code, is made to save litigation. The party to whom it is made may accept or reject it. If he accepts it, and may afterward bring a new action and sustain it by proof that the whole claim originally made was recoverable, or that the amount offered was due on one of sevérál causes of action embraced in the original action, it would or might destroy the only consideration upon which the other party acted • in making the offer. Non constat that the offer would have been made except upon the view that its acceptance would extinguish the entire claim. The offer in question was to permit judgment to be taken for $1,000, with interest on $500 from February 1, 1876, and on $500 from May 1, 1877. We can very easily see that the defendant intended to permit judgment *255 for the amount of the two quarters rent prior to May 1,1876, and not for the rent for the two quarters commencing May 1, 1877, which was also embraced in the action. The plaintiff was at liberty to accept or reject the offer. The acceptance and judgment merged the whole claim. Upon the evidence as now presented, we think the plaintiff is entitled to recover rent for the six months ending April 30,1878. The judgment should, therefore, be reversed and a new trial ordered. All concur. Judgment reversed.