125 Misc. 262 | N.Y. App. Term. | 1925
The plaintiff has recovered a judgment for damages against the defendant for breach of an alleged written contract of lease, under which the latter claimed to be entitled to possession of a certain portion of a store in Coney Island for the term of three
The plaintiff denies that the written instrument under which he is suing was delivered to him on condition that it was not to be effective until signed by Tuchfeld. But even if we are to accept this denial, it is difficult to see on what theory in this cause of action the plaintiff could recover damages against the defendant. Both from the wording of the old lease and the terms in the body of the instrument which gives rise to his claim, he was well aware that the defendant had a joint interest with Tuchfeld in the premises and that the defendant’s signature on the instrument was insufficient to pass the interest claimed to the plaintiff, in the absence of acquiescence or adoption by Tuchfeld. (Valentine v. Healey, 158 N. Y. 369.)
There was no proof of such acquiescence, nor is there any evidence to show that the defendant chose to sign both for himself individually and for his cotenant in a representative capacity. The instrument was, therefore, not binding, because it was not executed by both the lessors named therein, their consent or that of their authorized agents being necessary for the proposed lease to ripen into a con
Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.
All concur; present, Bijur, McGoldrick and Levy, JJ.