Walter v. Klein

219 A.D. 732 | N.Y. App. Div. | 1927

Order granting judgment on the pleadings, and judgment entered thereon, modified by limiting the dismissal of the complaint to defendants William Klein, Morris Klein, Beuhla Klein, Mathilda Cohen and Sarah Rothenberg, and as so modified affirmed, without costs. Judgment reversed, without costs, as to defendant Anna Klein upon the ground that defendant Anna Klein holds title to the premises as the representative or trustee of defendant Samuel Klein. Order canceling lis pendens modified so as to limit the cancellation to all of the defendants named in the order except Anna Klein, and as so modified affirmed, without costs; and order reversed as to defendant Anna Klein, also without costs. Jaycox, Manning, Kapper and Lazansky, JJ., concur; Kelly, P. J., dissents upon the ground that, under the allegations of the complaint, proof was admissible that at the time of the execution and delivery of the agreement there were present with Samuel Klein the defendants William Klein, Morris Klein and Mathilda Cohen, who consulted and were in conference with defendant Samuel Klein, their father and cotenant, and who advised with him and consented to the sale of the premises to plaintiff. Under these circumstances, Kelly, P. J., is of opinion that the respondents were estopped from denying that their father, Samuel Klein, was acting as their agent and in their behalf. (Rothschild v. Title Guarantee & Trust Co., 204 N. Y. 458; Harris v. Shorall, 230 id. 343.)