#### Philipina Arras *et al.,*Executors, etc., of John Arras, Deceased, *v.*George H. Richardson.

*(City Court, New York,*

*General Term,*

*Filed May 31, 1889.)*

1. Landlord and tenant—Presumption that hiring was for lawful purpose.

Where a lease does not disclose the purpose for which the premises are to be used, Ihe landlord has the right to assume (in absence of knowledge to the contrary) that the hiring was for some lawful occupation.

*2.*Same—Unlawful use—When surety not discharged from liability.

Where a landlord employs an agent to find a tenant, and one is found to whom the landlord executes a lease in writing for a lawful purpose, the mere fact that the tenant had previously told the agent who procured the tenant, that he intended to make an unlawful use of the property, cannot defeat the lease made, nor discharge a surety therein from liability, unless the landlord had knowledge of, or was privy in some way to the wrong.

••-''Appeal from judgment entered on verdict directed in favor of the plaintiff.

*Howe & Hummel,*for app’lt; *John Hardy,*for resp’t.

Per Curiam.—The

action is against the defendant as surety on a lease executed by John Arras, in his lifetime to Hall & Christie. The lease is in writing under seal, and the agreement of the defendant is also in writing, under, seal. The premises demised, consisted of Nos. 112 and 114 West Thirty-third street, in the city of New York, which were prior thereto, occupied by station “E,” of the New York post office. The defense is that the premises were let to be occupied for illegal and immoral purposes, to wit; for the purpose of selling liquors therein without a license, and of giving concerts without a license, and for the further purpose of keeping and maintaining the premises as a place of assignation or ill-fame. The lease does not disclose the purpose for which the premises were to be used, and the plaintiff *743had the right to assume (in the absence of knowledge to the contrary) that the hiring was for some lawful occupation.

The defendant undertook to prove, upon the trial, that the agent who let the premises for the plaintiff knew of the illegal purpose of the hiring, but the evidence was ruled out under exception. This ruling was correct. Hall and Christie both testified that they had never seen or conversed with Mr. Arras, the landlord, and there was no claim that he had any knowledge of any illegal purpose in the hiring.

In many cases, notice to the agent is regarded as notice to the principal, but, in order to charge the principal, in this instance, with an act that is criminal (Penal Code, § 322), the defendant is bound to prove that the principal had personal knowledge of the facts. In other words, if a landlord employs an agent to find a tenant, and one is found, to whom the landlord executes a lease in writing for a lawful purpose, the mere fact that the tenant had previously told the agent he intended to make an unlawful use of the property cannot defeat the lease made, unless the landlord had knowledge of, or was privy in some way to the wrong. There must be scienter on the part of the lessor. In this case the tenant was procured by the agent, but the terms of the demise were reduced to writing, and the letting consummated by the execution of the lease by the parties themselves, and in this there is nothing from which an unlawful use or purpose can be implied.

In *O’Brien*v. *Brietenbach*(1 Hilt., 304), which was an action by a lessee for damages for refusing to give possession of the premises, the court held it was no defense, that the defendant hired the premises intending to keep a bawdy house therein, and that the mere avowal of the lessee, of an intent to employ the leased property in an unlawful business, did not constitute an offense, nor did it entitle the lessor to repudiate his contract. There was no proof offered showing that the property was used for any illegal or immoral purpose, and the mere avowal to the agent of such intended use cannot make a contract, otherwise valid, illegal. If the defendant had proven an illegal intent carried into execution, together with scienter on the part of the landlord, he might have succeeded on his plea, but, as he offered no such evidence, he has failed to establish any defense.

Contracts tainted with immorality or illegality will not be enforced in a court of justice, but the immoral and illegal feature of this hiring seems to have been known only to the tenants or their surety, the defendant. The fact that they confided their scheme to the agent, and withheld it from the plaintiff, should not impair the contract which he made directly with the tenants and their surety.

If the demise had been made orally, and had been consummated by the agent, his knowledge, perhaps, might *744have been imputed to the landlord by constructive notice or implication, for by suing on the agent’s contract, the landlord would have to adopt it in its entirety, the bad with the good. But that is not this case. The agent merely found persons willing to hire, and the landlord consummated the hiring himself, and having had his agreement reduced to writing, and the leasing being free from any taint of illegality, and he having no knowledge of any intended wrong, he cannot be charged with the consequences of any. The contract made is free from any taint of illegality. In regard to the licenses for the concert and. liquor business, these might have been obtained by the lessees, if they were of good character, by dividing the two buildings and running a separate business in each.' They required_ the premises before they could properly apply for the required licenses, and they needed the lease before they could get the premises.

The immoral feature of the hiring is the one we regard as most important, and we have directed our attention chiefly to that. Upon the entire record, we think the rulings made below, aside from the reasons assigned for making them, were proper, and that no legal error was committed, to the prejudice of the defendant. The defense of surrender was entirely unproved.

The keys were never returned to the landlord, but to an employee in the agent’s office, who had no authority, implied or otherwise, to accept them. For these reasons the judgment appealed from must be affirmed, with costs.