Willis v. McKinnon , 54 N.Y.S. 1079 ( 1898 )

MERWIN, J.

Practically the only question presented by the appellant is that the court erred in declining to hold that the defendant McKinnon was estopped by the lease of April 15, 1886, from denying that Warren G-. Willis, the original plaintiff, was the owner of the entire title. The lease is from Prentice W. Willis, as surviving partner of the late firm of Travis & Willis, to Frank H. McKinnon, of a portion only of the property. It was then understood by all parties, according to the evidence on the part of the defendants, that Mrs. Travis, as executrix of the estate of Mr. Travis, the deceased partner, had an interest in the property. Prentice said that she would have to consent to the renting of it. She refused to sign the lease, saying that she wanted to sell. She finally agreed to give McKinnon three months’ notice in case she sold, and also the option of buying at same price she could sell for to another party, and then McKinnon took the lease from Prentice. The lease provides that, in case of sale, McKinnon should have first privilege of buying, and at least two months’ notice to vacate. It might be found from the evidence that the lease in the form it was, and in view of the negotiations with Mrs. Travis, was not intended to be hostile to the rights of Mrs. Travis. The lease was for one year, with privilege of renewal if the premises were not sold. At the end of the one year, Prentice and McKinnon settled. McKinnon wanted a renewal. Prentice refused to give it; said he could not; that his uncle was going to foreclose, and take the title, and McKinnon would have to make arrangements with him. After repudiating the lease, and disclaiming any right to control the possession, Prentice or his subsequent grantee, Warren G-. Willis, the original plaintiff, ought not to be permitted to say that McKinnon is estopped from asserting any right he subsequently obtained. It is to be observed that on this question of estoppel the plaintiff has no greater rights than Prentice himself had. Mc-Kinnon obtained a deed from Mrs. Travis on June 1, 1887. The deed was recorded June 15, 1887. The foreclosure of the two mortgages was, as it may be inferred, commenced soon after. Prentice deeded to W. G-. Willis May 1, 1888. It is stated in the “case,” as to both foreclosures, that they did not in any way affect the interest or title of McKinnon, if he had any. Prentice knew of the desire of Mrs. Travis to sell, and of the option she gave McKinnon. Under the circumstances here appearing, he should be deemed to have assented to the purchase by McKinnon of the interest of Mrs. Travis. If so, he or his grantee, the predecessor of plaintiff, has no right to say now that McKinnon shall not have the benefit of his purchase. I think the conclusion of the trial court was right, and the judgment should be affirmed.

Judgment affirmed, with costs.

HEEEICK and PUTNAM, JJ., concur.