Bend v. Hoffman House ( 1900 )

MacLean, J.

(dissenting). Mrs. Mary A. Townsend, as executrix, and Edmund S. Hamilton, as executor, under the will of Isaao Townsend, deceased, and Mary A. Townsend, individually, executed, December 16, 1881, a lease of the premises, known as the Worth House, to one Edward S. Stokes, who covenanted, in part consideration for said lease and by way of rent, to pay the Croton water rents assessed or imposed upon the premises demised. The late Mr. Townsend, in his will, received in evidence herein, had devised all his real property, subject to a life estate in his relict, Mary A., to his five children by name, Amy 0., Elizabeth, Sarah Helen, Mary Alice and Isaac Townsend. Mary A. Townsend, the relict, having died intestate April 16, 1887, Isaac Townsend became her administrator and distributed the goods and chattels, which had been hers, to and among Elizabeth A. Bend, Sarah H. Winthrop, Mary A. Sackett, Amy C. Townsend, and Isaac Townsend (himself), as was proven by the decree of the surrogate of New York county, received in evidence herein. The lease was continued by mutual extensions to May 1, 1894. Before the expiration of this term, as extended, the lease was transferred to “The Hoffman House”, of New Jersey, a foreign corporation, of which Stokes was the promoter and later president, and which assumed the obligations and liabilities of Stokes under the lease. That corporation fell into difficulties, and Stokes was appointed its receiver. While the corporation and its receiver were in possession, under the lease, and about April 17, 1894, Stokes purchased, at a referee’s sale, the lease, “ subject to all liens of every kind and description ”5 and all rights thereunder, in the name of the “ Hoffman House of New York ”, a new domestic corporation, which, however, was Stokes in fact, as all the shares belonged to him, though he had put a few into the names of dummy directors. So being “ sole owner and director and manager ”, having charge of the business of the company and acting for it, Stokes, in its name, asked and obtained from the plaintiffs, as named above, a renewal of the lease under the promise and upon the condition, “ sine qua non ” said their representative, that the defendant would pay the arrears of water refits which the original lessee had not paid, and for the amount of which this action was brought.

The defendant contends, and the learned justice below by his judgment sustained its contention, that the promise has no binding authority upon this defendant, and that it is not shown that the plaintiffs are the parties in interest. That the plaintiffs herein are the real parties in interest is shown prima facie Hennell v. Lyon, 1 Barn. & Aid. 182; Lawson Presump. Ev. 307, et seq.), by the identity of their names with the children who were partakers of the inheritance of' Isaac Townsend the elder, and to whom, by name, he devised the property in his will, in evidence herein, and by the identity of their names with those of the persons to whom the goods and chattels, which were of his relict, Mary A. Townsend, were distributed and paid under the decree of the surrogate, also received herein, excepting that in the interim between the deaths of the parents, three of the children, who were spinsters in the lifetime of the father, apparently became Mis. Bend, Mrs. Winthrop and Mrs. Hackett, respectively. Moreover, these plaintiffs were recognized, under date of January 19, 1895. as the owners of the premises, in an instrument, entered into between them, under their names, as they appear in the title of this action, and Stokes, under and by whom the defendant acquired whatever rights it has to the premises. Outside of the documentary evidence, the case of the plaintiffs rests largely upon the evidence of Stokes, whose testimony might not be disregarded by the learned justice, as he was not a party to the case, not contradicted or impeached bv the defendant, who failed even to call the other persons, present at the time of the agrreement testified to. As the defendant company took the property under these circumstances, it adopted and ratified and took the benefit of whatever was the agreement entered into for it by Stokes, who was then the real company, ostensibly and actually, and so (Burke v. Lincoln-Malentine Co., 28 Mise. Bep. 202) it is bound to pay the sum in arrears, as agreed upon, to the successors in legal interest of Mrs. Townsend and Mr. Hamilton, as executors, and Mrs. Townsend, individually, which the plaintiffs have shown themselves to be.

The judgment should be reversed.

Judgment affirmed, with costs.