Statement of the Case.

THOMAS A. DAVIES, APPELLANT, v. THE MAYOR, &c., OF NEW YORK, RESPONDENTS.

Municipal corporation—right of recorder to make or renew lease for New York city.-Offer of judgment—how applied.-Estoppel.-Res adjudicata.

The plaintiff sued the city to recover rent for certain premises for a period ending November 1, 1877, in which action the court of appeals held that the original letting to the recorder was with sufficient authority, and that the holding over, under the circumstances, made the defendants tenants from year to year, until May, 1877. After that decision, in January, 1881, the defendants offered to "allow judgment to be entered against them for the principal sum of $1,000, with interest on $500 thereof from the 1st day of February, 1877, and interest on $500 thereof from the 1st day of May, 1877," besides the costs. The plaintiff accepted the offer, and then brought this action to recover the rent from May 1, 1877. to May 1, 1878. It appeared upon the trial that the board of aldermen, in December, 1876, adopted a resolution setting apart, for the recorder, rooms in a building belonging to the city. There was no proof that this resolution was brought to the notice of the plaintiff. It appeared that the rooms designated were not ready for occupancy until the latter part of June, 1877, and that the recorder continued in possession of plaintiff's rooms until July, 1877.

Held (affirming judgment dismissing the complaint),

1. That, without authority from the board of aldermen, or such acquiescence in his holding over as would amount to a ratification, not only was the recorder without authority to take a lease, but he was equally without authority to create an implied renewal of a lease by holding over after the expiration of a term; and the resolution of the board of aldermen having been passed three months before the beginning of a current year, there was nothing from which the acquiescence of the municipal authorities to a renewal of the lease could be inferred.

2. The offer of judgment in the former suit, being a general one to compromise the claim sued upon, and there being no evidence to show that the offer was for the two first named quarterly installments, it could not be considered as relating to a particular part of the claim on which the suit is brought; and the judgment entered upon the offer to compromise did not constitute an adjudication

Opinion of the Court, by RUSSELL, J.

upon the rights of the parties, with reference to the subject matter in litigation, so as to create thereafter an estoppel to a denial by the defendants of a tenancy after May 1, 1877.

3. The claim for rent falling due August 1 and November 1, 1877, having been made a part of the plaintiff's cause of action in the former suit, compromised by the offer, became merged in the judgment entered therein; so that the plaintiff's action in this case, so far as that portion of his claim is concerned, is barred by that judgment.

Before SEDGWICK, Ch. J., FREEDMAN and RUSSELL, JJ.

Decided April 3, 1882.

Appeal from a judgment dismissing the complaint on a trial by the court, a jury trial having been waived. The facts appear in the opinion.

Edmund Coffin, Jr., for appellant.

William C. Whitney, corporation counsel, and David J. Dean, of counsel, for the respondents.

BY THE COURT. HORACE RUSSELL, J.-This action was brought to recover from the city the sum of $2,000, for the rent of offices in the building 317 Broadway, from May 1, 1877, to May 1, 1878.

The claim for the first six months, that is, $500, for the quarters ending respectively August 1 and November 1, 1877, was included in the complaint in a former action between the parties. The history of the transaction and the law as relates to most of the questions involved, will be found in the opinion of FOLGER, Ch. J., in Davies v. Mayor (83 N. Y. 209), reversing a dismissal of the complaint affirmed at general term (13 S. & S. 373).

The decision of the court of appeals establishes that the original letting was with sufficient authority, and that the holding over, under the circumstances, made the defendants tenants from year to year, until May, 1877.

Opinion of the Court, by Russell, J.

After that decision, and on January 22, 1881, the defendants offered "to allow judgment to be entered against them for the principal sum of $1,000, with interest on $500 thereof from February 1, 1877, and interest on $500 thereof from May 1, 1877, besides the costs and disbursements accrued and incurred in this action to the date thereof."

The plaintiff accepted the offer and entered his judgment accordingly, and then brought this action to recover the rent from May 1, 1877, to May 1, 1878, which includes two quarters embraced in the claim in the former suit. And the plaintiff's counsel now claims that the former judgment conclusively determines his right to recover in this action.

There was proof on the trial below that the Board of Aldermen, on December 26, 1876, adopted a resolution, approved by the mayor on December 28, setting apart for the recorder rooms in a building belonging to the city, and directing that the Commissioners of Public Works be authorized and directed to give notice and make provision accordingly. There was no proof that this resolution was brought to the notice of the plaintiff. It appeared that the rooms designated in the resolution were not ready for occupancy until the latter part of June, 1877, and that the Recorder continued in the actual possession of the rooms belonging to the plaintiff until the middle of June, and that the keys of such rooms were retained until July.

If the question to be considered were not complicated by reason of the fact that the defendant is a municipal corporation, and that the holding over was by an officer not authorized to make or renew, on behalf of the city, a contract of lease, and if the defendant were a person, who himself held over, we should have no hesitation in reaching the conclusion that although he had contemplated in December the abandonment of the premises and started to make other pro

Opinion of the Court, by RUSSELL, J.

vision, the mere fact that he held over, authorized the landlord, at his own election, to treat him as a trespasser, or as a tenant for another year (Schuyler v. Smith, 51 N. Y. 309). That the relation between the parties here until May 1, 1877, by reason of the holding-over, with the implied assent of the proper authority, was that of landlord and tenant, was determined by the court of appeals.

We are now to consider what effect, if any, the resolution of the Board of Aldermen, adopted in December, 1876, had upon the alleged continuance of the relation after May 1, 1877, and what effect, if any, should be given to the judgment entered upon the offer above stated.

While it is not directly, and in so many words, held in the decision of the court of appeals, that the acquiescence of the proper authorities in the holdingover by the recorder, was necessary to create such authority in him to hold over as would bind the defendants, and raise an implied renewal of the lease, inasmuch as that court put the plaintiff's right to recover for the two quarters ending May 1, 1877, upon the ground of assumed assent, that, I think, is the fair inference to be drawn from that decision; and that, without authority from the Board of Aldermen, or such acquiescence in his holding-over as would amount to a ratification, not only was the recorder without authority to take a lease, but he was equally without authority to create an implied renewal of a lease by holding over after the expiration of a term.

In the former appeal, the implied renewal having taken place before the passage of the resolution by the Board of Aldermen, it was held that their action could not operate to terminate the lease, impliedly renewed by the holding-over, before the end of a current year.

In this case, their resolution having been passed

Opinion of the Court, by RUSSELL, J.

three months before the beginning of a current year, there certainly was nothing from which the acquiescence of the municipal authorities to a renewal of the lease, could be inferred.

If that be so, and we have correctly apprehended the opinion, it would seem to make an end of this

case.

It is claimed that the resolution of December, 1876, shows a ratification of the continuance in possession by the recorder until the other offices should be fitted up for him, and notice given by the commissioner of public works. That resolution on its face does not bear such interpretation. It contemplates rather an immediate action toward the object resolved upon. It certainly cannot be construed into an implied acquiescence of a re-leasing of the plaintiff's premises from the 1st of May thereafter for another year. The plaintiff was then bound at his peril to inquire upon what authority, to bind the defendants, the recorder continued in possession after May 1 (Macdonald v. Mayor, 68 N. Y. 23; Brady v. Mayor, 20 Id. 312; 2 Bosw. 183; Donovan v. Mayor, 33 N. Y. 291).

These cases hold that a party dealing with a person claiming to represent the corporation, is charged with notice of his lack of authority, and, as I have already said, the effect of the court of appeals decision is to hold that the recorder's holding over could not bind the city unless upon a special authorization, or such acquiescence as amounted to an authorization.

I come now to the consideration of the effect of the judgment entered by the plaintiff upon the defendants' offer in the former action, which the plaintiff's counsel claims conclusively determines his right to recover in this action. This claim must be based on the theory that inasmuch as in that action a claim was made for rent falling due August 1, and November 1, 1877, upon the allegation of the renewal of the tenancy after May