By the Court.

His Honor Judge Vanderburgh, who granted the new trial in this case below, assigns reasons for his order, as follows:

“ The complaint admits the making of a verbal lease to the defendant, by the owners of the premises in question, amounting to a tenancy at will. This the defendant denies and sets up affirmatively that the agreement was for a written lease, absolute in its terms for ten years time.

“ The admission in the complaint binds the plaintiffs, as an admission to the extent ofits terms only. In order therefore to entitle the defendant to obtain the affirmative relief prayed for in the answer for a specifie performance of the agreement therein alleged, it is incumbent on him to prove this agreement, as alleged in the answer. On the trial it appears that no negotiations whatever were made with the owners of the land; the transaction, whatever it was, being wholly with George E. Huy and R. P. Russell. Now before the court can intervene to compel the owners to execute the lease, as claimed in the answer, it must appear that the owners authorized such agreement. All the evidence there is of such authority is the evidence of said George E. Huy, who swears that he was ' the agent of Loring G. Huy all through this matter,’ and that 'R. P.. Russell acted for Moore Russell’; and the evidence ofR, P. Russell who says that he 'acted for Moore Russell, and afterwards" for Marion Russell in this matter.’ These statements of course are taken in connection with the balance of their testimony for plaintiffs, *116in relation to tbe character of the lease, and they do not state the extent of their authority, or that they had authority to convey the land either in fee or for a term of years. It was given on the cross-examination of the plaintiffs’ witnesses, who had sworn to the contract as alleged in the complaint, and is not to be taken as sufficient evidence of the authority of these person s to make the contract set up in the answer, so as to warrant a judgmentfor the specific performance of the lease for ten years asked by defendant.

“ The plaintiffs are not entitled to judgment upon the findings, and the defendant is not entitled to the reliéf demanded by him, for the reasons above stated, and which seem to have been overlooked at the trial.”

We agree, substantially, to the views thus expressed. The testimony (such as it is) as to the agency of George Huy and R. P. Russell, could, to make the most of it, go no further than to show that they were agents to make the contract set up in the complaint, which is a very different thing from the contract found by the jury in their special verdict. As the verdict is, therefore, not justified by the evidence, the order granting a new trial was entirely proper and is affirmed