Moore v. Gair — 108 A.D. 23

Majority

p. 23

Lizzie M. Moore and George T. Moore, Appellants, v. Marie Gair, Respondent.

Headnote

A lessee estopped to deny title in one of his lessors—proof that such lessor did not sign the lease at the same time as the lessee and had, no interest in the demised premises does not excuse payment of the rent —both lessors may sue for rent.

Under the rule that a lessee who takes possession of demised premises is estopped from denying the title of her lessors, it is of no consequence that one of the lessors mentioned in the lease had not signed the lease at the time it was executed by the lessee and that such lessor had no interest in the premises, the other lessor being the sole owner thereof.

It is, therefore, improper, in an action brought by both of the lessors to recover rent due under the lease to dismiss the complaint on.the ground that there had been a misjoinder of parties plaintiff.

Appeal by the plaintiffs, Lizzie M. Moore and another, from a judgment of the Municipal Court of thé city of New York, borough of Brooklyn, in favor of the defendant, entered on the 8th day of December, 1904, dismissing the plaintiffs’ complaint.

Luther C. Billings, Jr., for the appellants.

Robert Wylie May, for the respondent.

This action was brought by the plaintiffs to recover a balance alleged to be due and owing from the defendant for rent. The

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defendant entered into possession of the premises No. 1028 Beverly road, in the borough of Brooklyn, under a written lease for the term of one.year from the 1st day of May, 1904, at the yearly rent of $720, which she agreed to pay to the plaintiffs in twelve equal monthly payments of $60 each. It appeared- upon the trial that the lease was not signed by the plaintiff George T. Moore at the time of its execution by the defendant. It ran to her, nevertheless, from both of the plaintiffs, and she took possession under it. • Evidence was received by the trial justice showing that the plaintiff Lizzie M. Moore was the sole owner, and that the plaintiff George T. Moore had no interest in the premises, to which plaintiffs’ counsel excepted, and the complaint was thereupon, dismissed on the ground that there was a misjoinder of parties plaintiff. This will not. do. The defendant promised and undertook to pay the rent to the plaintiffs, and it was of no consequence to her whether the premises were owned by one or both of them. Having taken possession of the premises under this lease, the relation of landlord and tenant was created, au,d she is estopped from denying the title of the lessors. (Prevot v. Lawrence, 51 N. Y. 219 ; Tilyou v. Reynolds, 108 id. 558, 563.) It was error to receive this evidence, and the judgment must be reversed, with costs.

Woodward, Jenks and Miller, JJ., concurred.

Judgment of Municipal Court reversed and new trial ordered, costs to abide the event.

Cases cited

Prevot v. Lawrence 51 N. Y. 219 N.Y. Comm'n App. p. 24