Gregory v. Michaels — 49 N.Y. St. Rep. 79

Majority

p. 79

William D. Gregory, Ex’r, Resp’t, v. William H. Michaels et al., App’lts.

(City Court of New York, General Term,

Filed November 25, 1892.)

Headnote

Lease—Estoppel.

By joining in the execution of a lease by an executor and accepting the same, the tenant admits the representative character of the lessor, and is estopped from disputing his authority either to contract or to sue on the covenants of the lease.

Appeal from judgment in favor of plaintiff.

Smith, Bowman & Close, for resp’t; A. Edward Woodruff, for app’lt.

Without considering the technical objection as to the sufficiency of the notice of appeal to entitle the appel.

p. 80

lant to a review on the merits, it is clear that the judgment below is right.

The action is on an indenture of lease executed by the plaintiff “ as executor of the last will and testament of Hester A Gregory, deceased,” as landlord, to the defendants as tenants.

By joining in the execution of the lease the defendants admitted the representative character of the plaintiff and his right to sue upon the contract, and are estopped now from disputing the authority. Farnham v. Mallory, 2 Court of Appeals Decisions, 100; S. C.; 3 Keyes, 527; 5 Abbotts Pr. N. S., 380 ; Hall v. Luther, 13 Wendell, 491; Tilyou v. Reynolds, 108 N. Y., 558 ; 13 St. Rep., 853 .

This upon the same principle that a person contracting with a corporation is estopped from questioning the corporate existence. Holmes v. Shietz, 2 City Court, 77.

The defendants having admitted by their contract the representative character of the plaintiff, cannot question it now, nor require the court to indulge in presumptions against the lessors’ right to contract or sue upon its covenants.

For these reasons, the judgment appealed from must be affirmed, with costs.

Newburger and Fitzsimons, JJ., concur.