260 Seaman Avenue Corp. v. Armstrong

PARKER, J.,

pro tem.

Plaintiff alleged a lease in writing of an apartment in the city of New York, for a period of thirteen months- beginning September 1, 1929, and terminating September 30, 1930, at the rental of $1170, payable $90 per month, and sues for a balance due thereon of $720.

Defendant denies the existence of such a lease. Defendant admits the signing of a lease, but alleges on information and belief, that the same was not executed by the plaintiff or any officer or agent of the plaintiff having authority to execute leases. Defendant then alleges that the lease was canceled and terminated by mutual consent.

The case was tried by the court, without a jury, and judgment went for plaintiff as prayed. Defendant appealed.

The first ground urged by appellant is that the finding that the apartment was leased for a stated time of thirteen months is not supported by the evidence. Strangely enough the lease itself was not offered in evidence at the trial. The record discloses that the lease was offered in evidence at the taking of the deposition of plaintiff’s witness, though the return is silent as to the action taken on the offer. However, all the testimony thereafter in the deposition was concerning the lease.

The direct testimony was that the lease was executed and that five months’ rent was paid and eight months’ rent remained unpaid. The testimony of defendant was that the lease was executed in duplicate, defendant retaining one and plaintiff one. No evidence was offered by defendant as to the term of the lease nor was any question raised in the court below on the point.

A fair reading of the transcript discloses that it was taken for granted that the lease was, as alleged, for thirteen months. The main claim of defendant was that the lease was terminated. Obviously a lease that never existed would require no proof of termination. We think the evidence sufficiently supports the finding attacked.

[614]

The next claim of appellant is that the lease was canceled and terminated. We do not find evidence to sustain this contention. The claim is based upon certain conversations with a person whose relation to the corporation plaintiff is not clearly revealed. This was a party referred to as a Mrs. Allen. We will not detail all of the facts and circumstances of defendant’s dealing with this lady. The fact is that defendant knew she had no power to execute the lease and did not execute the same. Should we concede her authority to terminate the lease, we would still lack proof that she did terminate it.