Rose Berry, Respondent, v. The Number 1465 Broadway Company, Appellant

Rose Berry, Respondent, v. The Number 1465 Broadway Company, Appellant. First Department, December 29, 1911. Landlord and tenant — principal and agent—authority to cancel lease. A real estate agent authorized by a corporation to rent its premises and collect rents, who conducted negotiations resulting in the leasing thereof and the execution by the parties of a written lease under seal, has no implied power to cancel the lease, where it provided that it could be modified and changed only by an instrument in writing signed by an officer of the corporation and under its corporate seal. The fact that the agent used a letterhead in which he styled himself the “Manager” of the corporation, does not in the absence of evidence of knowledge thereof on the part of the corporation, establish his authority to effect the cancellation. Appeal by the defendant, The Number 1465 Broadway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of June, 1911, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 14th day of July, 1911, denying the defendant’s motion for a new trial made upon the minutes,. George E. Morgan, for the appellant. Michael Schaap, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: On the 19th of October, 1909, the plaintiff’s assignor and the defendant entered into an agreement in writing under seal whereby the latter agreed to lease to the former the basement floor of a building, about to be erected, for a term of years to begin thirty days after the delivery of the leased premises and to end on the 1st day of' September, 1921. Pursuant to the terms of the lease, the -lessee paid $5,000 upon its execution. The lease provided that it could be modified and changed only by an instrument in writing, signed by an officer of the defendant and under its corporate seal. One Moses Greenwood, Jr., of the firm of Greenwood & Co., real estate agents, conducted the negotiations on behalf of the defendant leading to the making of the lease, and it may be inferred that he had authority on behalf of the defendant to rent the premises and collect the rents. On the 4th day of March, 1910, he wrote the lessee, saying: “ I regret to have to advise you that we must cancel your lease for the basement of the Heidelberg building because of your failure to comply with the terms of the lease.” Treating that letter as a breach by the defendant of its contract, the plaintiff brought this action. At the close of the evidence, upon motions made by both sides, the court directed a verdict for the plaintiff for the sum of $5,000 and interest.. There is no proof whatever in the record of the authority of the said Greenwood to bind the defendant by a cancellation of the lease unless it be inferred from the facts hereinbefore stated. By their letterhead the firm of Greenwood & Co., styled themselves “ Managers” of the defendant, but there is no evidence that the defendant had knowledge of that. It was at most a mere declaration of the agent, and it is unnecessary to cite authority upon the proposition that the declarations of an agent cannot be received to prove his authority. The question, in a nutshell, is whether a real estate agent, having authority to rent premises and collect' the rents, has implied authority to cancel such an unusual lease as the one in question here: Authority to cancel a contract cannot necessarily be implied from authority to make it. The written contract in this case was executed by an officer of the defendant, who may have been quite willing to confer authority upon the said Greenwood to conduct the negotiations leading up to the making of the contract without being willing or intending to clothe him with authority to cancel a contract which the defendant itself had executed. The defendant was careful to provide that the contract, executed by it under seal, could be modified only in like manner, and, while modification is not the same as cancellation, the latter is the more extreme measure. The trial court evidently assumed that the agent was the general manager, but, as we have seen, there was no evidence to justify that conclusion. The judgment and order should be reversed' and a new trial granted, with costs to appellant to abide the event. Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event.