Smith v. Caputo

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 No. 197£ Worth street. The respondent, Caputo, had been in possession of the premises Nos. 197 and 128 197J Worth street, as undertenant of one Moriarty, 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 No. 197J. No question was raised with regard to his possession of No. 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 $80 a month, “when he [Smith] got his deed.” As a matter of fact, James Z. Smith never obtained a deed 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 the 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 of 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, 25 N. Y. Supp. 85. The remaining evidence in support of the defense was that after the appellant took title he personally agreed to give “the lease” at $80 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 197J. 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.