Melcher v. Kreiser

51 N.Y.S. 249 | N.Y. App. Div. | 1898

Rumsey, J. :

The action was brought upon a lease under seal made between John L. Melcher, “as. attorney and agent for the owners of the premises hereinafter described, party of the first part, lessor, and Samuel Kreiser, of the said city, lessee, party of the second part.”' The paper was signed John L. Melcher, agent and attorney. It provided for renting certain property for two months, from the nineteenth of November to the nineteenth of December, at $400 a. month. The complaint contained an allegation that the lease was. continued from month to month, subject to all the terms and conditions of the lease, and that the defendant continued in possession of' the premises, and was in possession at the time of the commencement of the action. It alleged that the rent due on the 19th of April, 1897, and the 19th of May, 1897, was unpaid, except the sum of $300, and that there was due to the plaintiff, by reason of the-unpaid rent for these two months, the sum of $500, for which judgment was demanded. The answer, omitting the formal parts, is as-follows: The defendant “ denies the allegation contained in paragraph first of said complaint, and in folio 2 thereof, and further-alleges that the plaintiff herein is not the real party in interest, but is-merely the attorney or agent for the owners of the premises set forth in the complaint herein, and that ^ the real parties in interest are, as defendant is informed and believes, Ellen S. Melcher and Mary Paget.” On these pleadings the case came to trial. The-plaintiff proved the execution of the lease, that the defendant went into possession under it and continued in possession, and then rested.. Thereupon the court dismissed the complaint on the ground that the action was not brought by the real party in interest, and that there was no rent due and unpaid. From the judgment entered upon that order of dismissal this appeal is taken. That the rent was due and unpaid is admitted by the failure to deny it in th'e answer. Indeed, the answer contains no denial whatever. The

statement that it denies “the allegation contained in paragraph first of said complaint, and in folio 2 thereof,” amounts to nothing. It is utterly impossible to ascertain from an examination of the papers presented to us what portion of the complaint is in folio 2,- paragraph 1st, becarise there is no such foliti in the complaint. Such a pleading’ is entirely unwarranted and ineffectual, and is entitled to- no weight whatever as a denial of anything. In the trial of this case the plaintiff might well have stood upon the allegations-of the complaint, insisting that no part of .it was denied by the answer. But even if paragraph 1st can be deemed to have been denied, the allegation that the rent was unpaid was contained, in paragraph 3d, as to which no mention was made, and, therefore, upon the record, there is no doubt that $500 of rent was unpaid, as the plaintiff claimed; The making of the lease, and the fact that the defendant went into possession under it, and that the possession was continued by agreement between the parties from month to, month, and that the defendant was in possession at the time of. the commencement of the action, were-all established by the evidence, as well as admitted by the pleadings. Upon that state of undisputed facts the plaintiff was entitled to recover in this action, for various reasons. In the first place, as it appeared, that the defendant entered into possession of the premises by virtue of his lease from the plaintiff, and remained in possession under that lease, he was estopped from denying the existence of the relation of landlord and tenant between himself and Melcher as attorney, and his liability to pay rent to Melcher as he had agreed to pay in his lease, (Tilyon v. Reynolds, 108 N. Y. 558.) This contract being under seal, and having been made by Melcher personally, although describing him by the word “ agent,” Melcher was the only party of the first part .to this lease, and he, and not tho.se persons for whom he might have been agent, .was entitled to sue upon it. (Schaefer v. Henkel, 75 N. Y. 378; Albany & Rens. Co. v. Lundberg, 121 77. S.. 451.) ' If it can fairly be inferred from this paper that Melcher made''this contract for' the benefit of other persons, still he is a person with whom or in whose name a contract is made for the benefit of another, and, therefore, is a trustee of an express trust, within section 449 of the Code of Civil Procedure, and by the provisions of that section is entitled to.maintain this action. (Considerant v. Brisbane, 22 N. T. 389.) For all these reasons he was entitled-to sue and should have recovered the judgment in the action.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.