71 Misc. 460 | N.Y. Sup. Ct. | 1911
The plaintiff is the owner of an apartment house and seeks to hold the defendant as a hold-over after the expiration of his lease. In order, to establish the terms of the original lease, the plaintiff offered in evidence a lease in the name of R. F. Kilpatrick, agent, and signed by the defendant. The lease bore no seal but was in printed form and contained an attestation clause: “ In Witness Whereof we have hereunto set our hand and seal the 25th day of September, 1908.” " The defendant objected that this instrument was incomplete in that it was unsigned by the other party and offered the plaintiff its own copy, signed by R. F. Kilpatrick, Agent, by R. J. Sophian, Mgr., and by himself and bearing two seals and the plaintiff introduced this copy in evidence.
It appeared thereafter that R. F. Kilpatrick wa°s plaintiff’s agent, but the defendant objected tliat no undisclosed
• The last two cases decided “ that in general an action upon a sealed instrument of this description must be brought by and in the name of a person who is a party to such instrument, and that a third person or a stranger to the instrument cannot maintain an action upon the same.” Schaefer v. Henkel, supra, 381. There can be no doubt but that this rule is well settled and apparently the learned trial justice considered that, under authority of Life Insurance Co. v. Bender, the lease in evidence must be regarded as a sealed instrument and that in consequence the plaintiff cannot maintain this cause of action.
It seems to me, however, that the lease is not a sealed instrument and that, even if it were, it does not follow that the plaintiff cannot hold the defendant as a hold-over after the expiration of his lease.
The case of Metropolitan Life Insurance Co. v. Bender decided only that, where a person knowing and realizing the difference between a sealed and unsealed instrument signed a penal bond containing a statement that it was “sealed with our seals ” and then delivered it to a person interested in procuring its acceptance, who then had the paper signed by a second obligor and in good faith affixed seals to the signatures, and then delivered it to the obligee who accepted it in good faith as a sealed instrument, the obligor is estopped from showing that the instrument was not sealed by him, and
Moreover, even if the lease was not binding upon the landlord at the time it was executed, it by no means follows that . the landlord cannot 'maintain this action: In Anderson v.
Conner, 43 Misc. Rep. 384, it was hold that, while the landlord cannot show that a lease executed under seal by his agent in his own name accompanied by the designation agent was in fact executed in behalf of the landlord, yet where the landlord thereafter recognizes the lessee as his tenant he ratifies and accepts the lease and “ when thus ratified it would become valid and effectual for every purpose ” (p. 386). The opinion in that case was expressly adopted by the Appellate Division (2d Dept.) in the case of United Realty & Mortgage Co. v. Stoothoff, 133 App. Div. 245, and it would
The defendant also claims that the trial justice had- no right to permit the plaintiff to amend the complaint. The description was intended to identify the plaintiff actually in court and the amendment cured the error in the description but brought- in no new party and was, therefore, correctly permitted.
The judgment should he reversed and a new trial granted, with costs to appellant to abide the event.
■Seabuby and Bijub, JJ., concur.
Judgment reversed.