Shimer v. Ronk — 139 A.D. 137

Majority

p. 137

Lillian E. Shimer, Appellant, v. Martha E. Ronk, Respondent.

Second Department,

June 10, 1910.

Headnote

Landlord and tenant -— summary proceedings — execution of lease — ratification.

Where a lease is executed by the husband of the owner of the land in her presence and with her knowledge and consent, and she witnesses his signature as landlord, she cannot, before the expiration of the term, maintain summary proceedings against the tenant on the theory that the lease was executed without written authority,- and was, therefore, void, save for the period of one year.

The execution of the lease, under .the circumstances, was the personal act.of the owner.

Where after the execution of the lease the owner instituted summary proceedings for non-payment of rent and set up the execution of the lease and its terms in her petition, and after entry of a final order collected the rent, it seems that she thereby ratified the lease.

Appeal by the plaintiff, Lillian E- Shimer, from a final order of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor' of the defendant, dismissing the petition in summary proceedings.

Robert H. Wilson, for the appellant.

Henry Brill, for the respondent,

The appellant’s petition alleged that' the respondent, as her tenant, was in possession of certain real estate belonging to the appellant, and was holding over after the expiration of her term. The theory of the proceeding was that the lease by virtue of which the

p. 138

respondent is in possession was executed by the appellant’s husband ( as her .agent without written .authority; that it was made for a period-of two years and two months from August 1, 1908, and that, by reason of its execution by the appellant’s agent under seal and without written authority, it was void as a lease excepting for the period of one year, and that, as a. consequence, the continuance by the tenant in possession, after August 1, 1909, was an unlawful holding over. It was plain, however, from the.evidence that the possession of the tenant was lawful under the lease, and the petition was properly dismissed.

The lease was not void under the Statute of Frauds. To ■ hold otherwise would convert a statute designed to prevent frauds into an active instrument for their creation. The lease was executed by the appellant’s husband in her presence and. with her knowledge and consent. In fact, she witnessed his signature to it as landlord. That she was the owner of the property was known to the tenant at the time the lease was executed, and the latter then asked her if her husband could sign the lease, to which she replied that it would be all right. Many interesting questions are presented in the appellant’s brief as to the effect and nature of ratification and the possible avoidance of a lease executed by an agent beyond the scope of his authority, but they have no application to this case for the reason that the lease in this instance must be regarded as- the appellant’s personal and individual act. It was her lease to the same extent as it would have been had it been executed by her husband writing her name in her presence and with her express oral authority. Every principle of good faith and integrity in dealing requires that she should be estopped .from disputing the validity of a document executed by her agent in her presence and with her authority on the. pretense that such authority had not been sufficiently conferred.

The appellant not only sufficiently authorized the execution of the lease, but she subsequently ratified it. It appears that about a year after its execution she instituted - proceedings in the Municipal Court of the city of Hew York against the tenant for the non-payment of rent. In her petition she set up the execution of the lease and its terms, and upon the trial procured a final order or judgment dispossessing the respondent for non-payment, and thereafter, and

p. 139

- until some time shortly prior to the institution of the present proceedings, she collected the rent.

In Reich v. Cochran ( 151 N. Y. 122 ) it was held that a valid judgment, regularly obtained by the.landlord in summary proceedings to dispossess a tenant for non-payment of rent, is a bar to an action brought by the tenant against the landlord to cancel the lease between them-, on the grounds that it was intended as a mortgage and was usurious, although those questions were not actually litigated or considered in the summary proceedings; and by a parity of reasoning it would seem that the former decision herein might possibly be regarded as. a bar to the proceedings now under consideration.

The final order should be affirmed.

Woodward, Jenks^ Burr and Thomas, JJ., concurred.

Final order of the Municipal Court affirmed, with costs.

Cases cited

Reich v. Cochran 151 N. Y. 122 N.Y. 1896-12-01 p. 139