CITY COURT OF NEW YORK, GENERAL TERM,

APRIL, 1899.

#### Ruth A. Wallace, Respondent, *v.*William J. Arkell, Appellant.

Appeal from a judgment in favor of plaintiff.

Norwood *&*Dilley, for appellant.

Charles Putzel, for respondent.

Fitzsimons, Ch. J.

The sole question presented upon this appeal is: “ Was Louis C. Fuller the agent of the defendant Arkell, in negotiating for the surrender of the lease held hy the Tin Foil Company?”

The facts are as follows: The defendant and Fuller were lessees of the premises 449-451 West Fifty-third street, owned by plaintiff. Their lease expired May 1, 1896. They had a privilege of renewal, but prior to that date they notified plaintiff that they would not accept such renewal, whereupon plaintiff rented to the Tin Foil Company for a period of three years, commencing May 1, 1896.

Subsequent to each declination and prior to said May 1st,. Fuller called upon the Tin Foil Company, and agreed with it to pay it the *820sum of $1,200, if it would surrender and. yield up to him its lease, which was accordingly done. An assignment of the cause of action was made to plaintiff. This action is to recover the said $1,200, as before stated.

The question presented is: “ Was Fuller the agent of defendant in the negotiations just recited? ”

The jury decided that question against defendant, and we think their conclusion was justified by the evidence. W e think it shows that in the business transaction had' between Fuller and the defendant, Arkell was the responsible and head man. That, in fact, he was the principal, and Fuller a mere agent. Arkell was the financial man. He furnished the funds and apparently relied upon the good judgment of Fuller in the expending of them. The latter had knowledge of the business carried on, but appears to have had no means. The former furnished the needed financial means, but was ignorant of the needs of the business.

It was, therefore, a reasonable thing for the jury to find that in all matters pertaining to the welfare of the business, defendant trusted the execution of them to Fuller, he (defendant) furnishing the necessary funds to do so.

The defendant concedes that he pursued this course up to the transaction in question, but quit doing so just about that time. But the testimony of Mr. Charles Putzel, plaintiff’s attorney, contradicts that theory. He swears “ That the matters (referring to the negotiation in question) were conducted entirely by Fuller, and that he (defendant) had left them to him.”

The jury evidently believed this testimony, and, furthermore, believed that such was the fact, and so believing, of corase ufere justified in finding.that Fuller was defendant’s agent.

This testimony shows that concerning these transactions, Fuller was defendant’s general agent; his *alter ego;*in fact, was binding-defendant in all things said and done by him therein.

The probability of the truth of Mr. Putzel’s testimony and 'of the fact that .Fuller was the agent and defendant the principal is proved, even by the testimony of Fuller, who was called as a witness by defendant. He says, that prior to the offer of $1,200, he consulted with Mr. Arkell, but denied that he represented him.

If Arkell had no interest in this matter, as he now contends, why was such consultation had? Evidently, the jury believed it was because Fuller could not act without first consulting the defendant.

The jury were the judges of the questions of facts submitted to them. If they had decided in defendant’s, favor we would sustain *821their verdict. Having found in plaintiff’s favor we shall uphold their finding.

We think that no error was committed, and, therefore, affirm, the judgment, with costs. -

McCarthy and Hascall, JJ., concur.

Judgment affirmed, with costs.