Nesbit v. Albert — 32 N.Y.S. 911

Majority

p. 911

NESBIT v. ALBERT.

(Supreme Court, General Term, First Department.

March 15, 1895.)

Headnote

.Estoppel—Filling Blanks after Execution of Lease.

A surety in a lease cannot show, as a defense to an action thereon, that he signed it before the blanks were filled up, or that the seal was not affixed at the time of the execution, where the lease in due form was delivered to the lessor, who had no knowledge of such facts.

p. 912

Appeal from circuit court, New York county.

Action by Elizabeth Nesbit against Halpern Albert for rent. Prom a judgment entered on a verdict directed by the court in favor of plaintiff for $2,159.85, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before VAN BRUNT, P. J., and' O’BRIEN and PARKER, JJ.

A. H. Parkhurst, for appellant.

Edward B. Hill, for respondent.

This action was brought to recover the rent unpaid under a lease upon which the defendant was surety. Sylvanus C. Boynton, prior to the execution of the lease, was in possession of the same premises as tenant, but, as he was not prompt in making payment of the rent as it became due, he was required, as a condition of a further leasing of the premises, to obtain a surety who should guaranty such payment. In due course he executed the lease himself and procured this defendant to become surety thereon. He continued in possession under the new lease for a period of about nine months, but for a portion of the time he failed to pay the rent. The direction of a verdict in favor of the plaintiff, the appellant says, was erroneous, in that there was sufficient evidence tending to show that the agreement was not filled out at the time of its execution by the surety to have at least presented a question for the jury. It is not only proved by the subscribing witness and the lessee that the surety signed the contract of suretyship, but he admits it himself, and concedes that he understood the purpose of it at the time of its execution. And, having turned over to the lessee the lease bearing the contract of guaranty, signed by the defendant and witnessed in due form, he could not thereafter, as against the lessor, coming into possession of the lease and the contract of guaranty without any knowledge that the blanks had been filled up subsequent to execution, assert that fact as a defense. Manufacturing Co. v. Drummond, 40 Hun, 260 . For the same reason, the attempt to swear the seal off the contract at the time of its execution was not effective. There was evidence, it is true, that the contract, when signed by the surety, did not bear a seal,—sufficient evidence to have presented a question for the jury, if a favorable determination by them could have affected the result. But the surety, having signed the contract, which asserted the existence of a money consideration from the lessor, and the further consideration of a letting of the premises to the lessee, and delivered the same to the lessee, duly witnessed, must be held to have authorized its delivery to the lessor as a completed instrument; and if he seeks to be relieved from liability under his contract, on the ground that the instrument has been altered since its execution, he must show that the instrument was altered after it came into possession of the lessor. No other rule would be safe, and there is no authority asserting the existence of such a rule. This defendant did not attempt to do. The judgment should be affirmed, with costs.