#### Sam Steinfield et al., composing the firm of Steinfield Bros., Respondents, *v.*Abner M. Wilcox, Appellant.

(Supreme Court, Appellate Term,

February, 1899.)

Lease — What is not a mere agreement for a lease.

A written proposition to lessees by which a person “ agrees ” to lease an office of them for one year at a rent stated provided the owners ratify and make certain repairs, is, when accepted by the lessees and ratified by the owners, á binding contract and is not a mere agreement to make a lease.

Appeal from a judgment rendered in favor of plaintiffs and against defendant in the Municipal Court of the seventh district, for the sum of $342.40.

The action was brought to recover for six months’ rent of an office in the Cable building "in New York city, claimed by the plaintiffs to have been leased to the defendant at a monthly rental of $62.50.

The material facts appear in the opinion.

Whalen *&*Dunn, for appellant.

Friend, House & Grossman, for respondents.

Freedman, P. J.

The whole question in this case seems to hinge upon the question whether a certain instrument in writing, signed by the defendant, taken in connection with the testimony in the case, was a *lease*or simply an agreement for a lease. The instrument introduced in evidence, and called plaintiffs’ exhibit Ho. 1, reads as follows:

> *“*Jan. 21st, 1898.

> “ Mess. Steinfield Bros.:

> “ Messrs.—I hereby agree to lease the office, Ho. 412 Cable building, from February 1st, 1898, for the term of one year, at an annual lease of $150' per year, with the proviso» that the Metropolitan Street Railway Co., the owners of the building, will ratify this lease and that they will make the necessary repairs free of charge, and that they will change the office and railings to suit, and *402that they will tint the walls, and put a moulding strip around the top.

> “ Yours Respectfully,

> “ Abner M. Wilcox.

> Accepted by.”

Upon the trial in the court below, the defendant, although represented by counsel, who was present, introduced no testimony, evidently relying upon the weakness of his adversary’s case to prevent the obtaining of a judgment or reversing one, if obtained.

The testimony of the plaintiffs and their witnesses must be taken as true, and if there is legal evidence sufficient to sustain the judgment, and no manifest injustice has been done the defendant, it must be sustained. Lockwood v. Lockwood, 14 N. Y. Supp. 831. The plaintiffs were the lessees of the whole or a portion of the building.

What led up to the making of the instrument in question does not clearly appear, but on January 21, 1898, the defendant drew up the paper (Exhibit 1), signed it and presented it to one of the plaintiffs, who thereupon accepted it in the name of his firm.

The parties then went to the office of the treasurer of the company, who had charge of the building, and presumedly had authority to ratify the lease, obtained his assent and ratification thereto, and after that interview, the testimony shows, that the defendant expressed himself fully satisfied with the arrangements and promised to inform the plaintiffs the next day how he wanted the walls tinted.

'Subsequently the defendant was informed by letter from the plaintiffs (Exhibit 2), that the office would be ready for him in a few days.

After this the defendant went to the office of the plaintiffs and had a conversation with them, in which he said, *“*he thought he would change his mind,” asked the, plaintiffs *“*to let him off,” and stated that he “ wanted to be let off because he liked the other place better.”

We think the testimony fully warranted the trial court in holding that the instrument, when viewed in the light of the surrounding circumstances, as shown by the testimony, constituted a good and sufficient lease. A proposition had been made by one party and had been accepted by the other and thus the minds of the parties had met. The result was a contract mutually binding upon *403the parties within the rule laid down in Pratt v. Hudson River R. R. Co., 21 N. Y. 305.

The intent of the' parties must he determined from all the facts and circumstances of the case as well as from the instrument itself.

The plaintiffs proved without objection, exception or motion to strike out, that the agreement was that the rent should be paid monthly. That testimony did not, in view of all the circumstances of the ease, in any way vary the terms of the written instrument, but simply explained its meaning. A considerable portion of the defendant’s brief is devoted to matters that do not appear in the record, and, therefore, cannot be considered.

The judgment should be affirmed, with costs.

MacLean and Leventritt, JJ., concur.

Judgment affirmed, with costs.