Marshall v. Lippman ( 1878 )

BabNAUD, P. J.:

The plaintiff demised to defendant Sternbergh certain premises in Ewen street, Brooklyn, for five years from 25th May, 1874. In June, 1874, Sternbergh assigned the lease to defendants Lipp-man and Shilberg, who entered into possession, and paid rent therefor in the name of Sternbergh for about three years. Sternbergh has assigned all his interest to the rents reserved by the lease to plaintiff. The plaintiff brings these actions for rent against Sternbergh, Lippman and Shilberg. The objection that the three defendants could not be joined in one action is too late. Unless such objection is taken by answer it is to be deemed waived. (Code of Civil Procedure, §§ 498, 499.) It is no answer to the objection, that the complaint was too indefinite. The defendants should have required it to be made more definite, and then demurred for misjoinder of parties defendant. The complaint did not refer to the premises for which rent was claimed, and this was sufficient notice of the facts upon which the plaintiff made the joint claim against all the defendants. Sternbergh made no defense, and does not appeal. The other two defendants are the assignees off the lease. They entered into possession as such. They paid rent to the landlord repeatedly, as they were bound to do, by taking the lease subject to the rents reserved. They paid no rent to Sternbergh. The proof made out privity of contract between plaintiff and Lippman and Shilberg. (McFarlan v. Watson, 3 N. Y., 286.)

The objection that the papers were proven on the trial by proving the signature of the parties to them, by other evidence than the evidence of the subscribing witness, cannot be held error, because there was no such objection taken on the trial. By not taking this specific objection the defendants waived it. The inference is that, if taken, the subscribing witness would have been called. The question whether Levy occupied the premises in fact was immaterial, and, therefore, it was not erroneous to reject an offer to prove it. The question was whether Lippman and Shil-berg were liable. If they were, Levy was their tenant.

Judgment should be affirmed, with costs.

Gilbert and DykmaN, JJ.; concurred.

Judgment affirmed, with costs.