Rowland v. Dillingham

82 N.Y.S. 470 | N.Y. App. Div. | 1903

Jenks, J. :

The applicant for the removal states in the petition that he is the agent for Huntingdon, who is the executor and trustee of the last will and testament of Emma Hart, deceased, and there is postilled a clause from her will as follows: “ I hereby authorize and empower my executor hereinafter appointed, as soon as practicable after my death, to sell and dispose of all the real estate of which I may die seized and possessed, and to give good and sufficient deeds of the same.” The applicant also states that he entered into an agreement with the defendant as tenant.

I think that this is sufficient allegation of “the interest therein of the petitioner, or the person whom he represents,” and statement of “ the facts which, according to the provisions of this title, authorize the application by the petitioner and the removal of the person in possession,” as required by section -2235 of the Code of Civil Procedure. The defendant raises a jurisdictional question based upon the alleged disability of the executor and trustee to rent the premises. The defendant does not deny, but asserts the relation of landlord and tenant, and it is clear, even upon his testimony, that he knew at the time of the renting that the agent represented an executor. Therefore, I think that he is estopped from denial of the title of his landlord. (People ex rel. Ward v. Kelsey, 38 Barb. 269; Tilyou v. Reynolds, 108 N. Y. 558; Mayor v. Sonneborn, 113 id. 423; Woodfall Landl. & Ten. [1st Am. ed.] *214.) The question as to the term was sharply contested, but I think that there is no warrant for disturbing the finding of fact in favor of the plaintiff.

The judgment should be affirmed, with costs.

Goodrich, P. J., Bartlett, Hirschberg and Hooker, JJ., concurred.

Final order in summary proceedings affirmed, with costs.