Thorn v. Sutherland , 21 N.Y. St. Rep. 182 ( 1889 )

Van Brunt, P. J.

An examination of the opinion delivered upon the previous appeal seems to us to dispose of all the questions involved in this appeal. It was distinctly held, under the facts as they then appeared, (and in these respects upon the new trial no change has been made,) that no cause of action was made out against the defendant Sutherland, but a new trial was ordered because of the error in excluding certain evidence whicli the court thought might tend to show that Mr. Speir was acting as the agent of Mrs. Payne. In making this decision it would seem that the court had overlooked the fact that Mrs. Payne was not a defendant in the action, and that it was entirely immaterial whether Mr. Speir had authority to act for Mrs. Payne or not. It seems to be urged upon this appeal that, because Mr. Sutherland is claimed to have had an equity of redemption in this property, therefore, he is liable. It appears, however, from the evidence, that Mr. Payne, and, after his death, Mrs. Payne, were at least mortgagees in possession; and it has been judicially determined by the dispossession proceedings, as between these plaintiffs'and Mrs. Payne, that Mrs. Payne was their landlord, and entitled to the possession of these premises as against them. NMemetty v. Naylor, 100 N. Y. 562.¹ And the surrender of the premises appears to have been to Mrs. Payne, and not to the defendant Sutherland. Upon the previous appeal it was held that whatever promises Sutherland made were entirely ineffectual to sustain this action, because the promise testified to was made at or about the time of the execution of the lease, and undoubtedly referred to the taking away of the property which the plaintiffs might place upon the premises during the lease; and the further promise, which seems to have been imported into this case, appears to have been made after the surrender of possession, and not as an inducement to surrender possession, and therefore was entirely without consideration, and, even if it had been made, would not form the foundation for the action in question. There seems, therefore, to be no basis upon which the action could be maintained against the defendant Sutherland; and as to whether Mr. Speir had authority to act for Mrs. Payne is entirely immaterial, as Mrs. Payne is not a party defendant in this action. The judgment should therefore be affirmed, with costs. All concur.

1 3 N. E. Rep. 497.