128 N.Y.S. 715 | N.Y. App. Term. | 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 was plaintiff’s agent, but the defendant objected that no undisclosed principal could sue upon a sealed instrument. Thereupon Sophian, who executed the agreement, testified that the seals were not placed upon defendant’s lease at the time of the execution, and that he had never seen the seals before. The plaintiff then offered to withdraw the sealed copy of the lease, which it had apparently inadvertently offered in evidence, and to substitute its own copy, and this copy was also admitted in evidence. At the close of the plaintiff’s case, the defendant moved to dismiss, and then rested. Thereafter the trial justice gave judgment for the defendant in a memorandum opinion:
“The grounds for this judgment are set forth in Life Insurance Co. v. Bender, 124 N. Y. 47 [26 N. E. 345, 11 L. R A. 708], Schaefer v. Henkel, 75 N. Y. 378, and Briggs v. Partridge, 64 N. Y. 357 [21 Am. Rep. 617].”
“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, at page 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.
“The recital of a material fact in a bond, which is accepted by the obligee and acted on in the belief of the truth of the statement, estops the obligor from showing in an action on the bond that the recital is not true.” 124 N. Y. 51, 26 N. E. 346, 11 L. R A. 708.
In the case under consideration the defendant knew that the lease was not sealed, and was not deceived by the recital, and consequently no estoppel arises. The landlord does not seek to escape any liability to which it would have been subject if the lease had been under seal, for the lease was effective against it only if unsealed, and it is the tenant who now seeks to have it declared invalid. The case relied on is authority rather for the view that the lease must be regarded as an unsealed instrument, since the opinion clearly intimates that, if the bond had been actually delivered unsealed, the obligor could have established his defense:
“Had the defendant intended in good faith to execute and deliver an unsealed instrument, he should have stricken out the words quoted, or have taken great care to have it delivered to the obligee as executed by him; but he did neither.”
Any presumption that might arise from the recital seems to me completely met by the undisputed evidence in this case that the lease was actually unsealed, and by the circumstances that it would not have been effective to bind the landlord if it had been sealed.
The judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.