Lillian Realty Co. v. Erdurm

LEHMAN, J. The plaintiff sues for rent for the month of March, 1909. The defendant’s defense to this claim is a surrender before the rent became due. At the trial the defendant testified to transactions with the plaintiff’s agents which certainly were sufficient to raise at least a question of fact whether the plaintiff had not terminated all obligations under the lease by the acceptance of the surrender, provided the agents of the plaintiff had authority to bind the plaintiff. The trial justice gave judgment for the plaintiff upon “the ground that it does not sufficiently appear that the agents had authority to accept any surrender of the premises,” and on that ground only. While the question is not free from difficulty, I think the'trial justice erred, and that the defendant had made a prima facie case of authority sufficient to require rebuttal by the plaintiff. It appears that the agents had authority to sign leases, and had a large, if not a general, authority over the premises; that they had on one occasion permitted a substitution of .tenants, where it appeared' that there could be no injury to their principal by such substitution. It further appears that the agents on March 16th wrote to the defendant, stating that they had rented the premises from April 1, 1909, and therefore inclosed a bill for March rent, and concluded: “On receipt oí your check, we will return to you the signed copy of the lease which we have obtained from the Lillian Realty Company.” This letter was introduced in evidence, not by the defendant, but by the plaintiff itself, and is binding upon it. In view of the offer contained therein to cancel the lease from that date, I do not see how it can be doubted that the agents had authority to modify or to terminate a lease. The defendant made a stronger case of agency than was apparently shown in the case of Goldsmith v. Schroeder, 93 App. Div. 206, 87 N. Y. Supp. 558. The trial justice should therefore have required the plaintiff to produce evidence to meet this proof. Judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. DAYTON, J., concurs.