In re Zink — 19 N.Y. St. Rep. 479

Majority

p. 479

In the Matter of the Application of Henry Zink and Another, Landlords for the Removal of Joseph Bohn and others, Tenants.

(Superior Court of Buffalo, General Term,

Filed December 3, 1888.)

Headnote

1. Landlord and tenant—Effect of conveyance of the fee—After EXECUTION OF THE LEASE.

The conveyance of the fee of the premises by the lessor, without reservation, carries with it all the lessor’s rights in the lease, substituting the grantee in his place.

2. Same—The lease - establishes the relation of landlord and TENANT.

_ A lease under seal is sufficient of itself to establish the convent onal rela tion of landlord and tenant. When the parties are shown to have executed it the relation is established.

3. Same—Estoppel of tenant from denying landlord’s title.

This is all that the petitioners for possession have to prove. To go behind it would require the petitioners to show title,, possessory or otherwise,' which is conclusively presumed in favor of the petitioners, and the tenant is estopped from denying it.

4. Same—Tenant holding over—Estoppel.

A tenant holding over after expiration of his term, the law implies an agreement upon his part to hold in accordance with the terms of the prior lease, and this he may not deny.

5. Same—Sub-tenant properly made a party.

One who occupied and carried on business in a part of the premises, with the knowledge and consent of the tenant, is properly made a party defendant.

Appeal from a judgment of the municipal court of Buffalo adjudging the tenants herein in default, for non payment of rent, and directing a warrant to issue to put petitioner in possession of the premises.

E. L. Parker, for landlords; O. C. Dewitt, for tenants.

Upon the trial below petitioners produced in evidence a lease of the premises described in the petition instituting these proceedings bearing date November 13, 1875, for the term of three years, from the 9th day of September, 1875. Said lease was under seal partly printed and partly written, and purported to be signed by George D. W. Clinton, as landlord, and Joseph Bohn, as tenant. It was. further proved that Clinton died subsequent to the execution of the lease,’ and that by various conveyances the petitioners-became the owners of the premises, previous to instituting these proceedings. It was further established that Bohn continued in possession paying no rent; that the statutory notice had been served requiring said tenant to pay the rent which had accrued since petitioners became owners of the premises, or remove therefrom. These facts having been established, petitioners became entitled and the court was-authorized to render the judgment which it pronounced. The conveyance of the fee without reservation, carried with it all of Clinton’s rights in the lease, substituting petitioners in his place. Hannigan v. Ingersoll, 20 Hun, 316 : Code-Civil Procedure, sec. 2233.

It is claimed, however, that as there was no evidence that Clinton was the owner, or in possession of the premises at the time of the execution of the lease, there is a failure of proof and no judgment in petitioner’s favor could be pronounced. This ob j ection proceeds upon the theory that a lease-under seal alone is not sufficient to establish the conventional-relation of landlord and tenant. The relation of landlord an d tenant is createdby agreement, and the lease is the agreement, consequently when the parties are shown to have executed it, the relation is established. This is all the petitioners need-prove, to go behind it would require the petitioners to show title, possessory .or otherwise, which is conclusively presumed in favor of the petitioners, and the tenant is estopped from denying it. Ackley v. Westervelt, 86 N. Y., 448 ; Provot v. Lawrence, 51 N. Y., 219 . The tenant can scarcely insist upon the petitioners proving what he is estopped from denying.

It is further claimed that there is no proof that Clinton ever signed the lease. The contest upon the trial related solely to the question whether the tenant executed the lease; upon that subject the evidence was conflicting; but the court has found against the tenant, and we must conclude that he executed the lease. Having so found, it was immaterial whether or not Clinton signed, for the tenant has since remained in the possession of the premises, enjoying the fruits of the agreement. He is now estopped from being heard to say that the lease was never properly signed by the landlord. But if it were necessary, it must be considered as established. Clinton’s name appears attached to the lease with his seal; it was assumed upon the trial that he signed, and no objection or suggestion was made, hut that such was

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the fact. Appellant cannot now he heard to raise the question for the first time. Paige v. Fazackerly, 36 Barb., 392 ; Jencks v. Smith, 1 N. Y., 90 .

It would be presumed that the proof could have been supplied if objection made. The lease having been established and the continued possession thereunder shown, after the expiration of the term, the law implied an agreement upon the part of the tenant to hold in accordance with the terms of the prior lease, and this- he may not deny. Ackley v. Westervelt, (supra); Webber v. Shearman, 3 Hill, 547 , 550.

The proof also showed that Catharine Bohn also occupied and carried on business in a part of the premises, and that she so entered with the knowledge and consent of the tenant. She was, therefore, properly made a party.

We find no error in the record. The judgment should,, therefore, be affirmed with costs.

All concur.