Evans v. Conklin , 78 N.Y. Sup. Ct. 536 ( 1893 )

HARDIN, P. J.

Loughran v. Smith, 11 Hun, 311, is an authority for holding that the lease is valid between the plaintiff and the lessee who occupied under the same, notwithstanding the fact that it was not signed by the plaintiff; and the production of the lease, and the proof given on the trial that the lessee, Frank Conklin, entered into possession of the premises, and occupied the same, and the rent had not been paid, quite satisfactorily established a cause of action against Frank Conklin, the lessee.

2. When the plaintiff rested a motion was made to “dismiss the complaint, as against Luther Conklin, on the ground that he is not a party to the lease, and is not liable thereon;” and, second, that there is no evidence “that will warrant a judgment against Luther Conklin, or, against any defendant, that will support a joint judgment in this action.” The motion was denied. Thereupon, Luther Conklin was sworn as a witness, and he was asked, “Did you sign the lease as a subscribing witness only?” This was objected to, and the objection was sustained. The following question was then put to him: “Did you ever sign that paper, plaintiff’s Exhibit A, except as a witness to the execution of it?” This was objected to, and the objection was sustained. At the close of the evidence a motion for a nonsuit was renewed, on the whole evidence, on the same grounds, and on the further grounds “that the plaintiff hah -not signed the lease, and the minds of the parties did not meet, land the lease is void.” The motion was denied. The lease produced 'bore date January 10, 1891, and read as follows:

“TMs article of agreement, made and entered into tMs 1st day of February, 1891, by and between Harry Evans, * * * party of the first part, and Frank W. Conklin, * * * party of the second part, witnesseth, that the party of the first part agrees to let, and by these presents does let, unto the party of the second part, for the term of one year, Ms farm situate in the town -of Fabius.”

Many other stipulations are found In the lease, and there is ^nothing in the body of it, nor in any attestation clause, indicative that Luther S. Conklin was in any way a party to the agreement." However, his name appears to have been written immediately under the name of the lessee, Frank W. Conklin. In Decker v. Gaylord, 8 Hun, 111, it appeared that a lease had been signed by the lessee, and thereafter appeared the words, “Chester Gaylord, security for Frederick S. Gaylord;” and in the course of the opinion delivered in that case it was said that the defendants were not joint lessees ■of the plaintiff, and that they could not be held liable upon the lease given in evidence in that capacity, and in the opinion it was .-said:

“The lease was clearly a contract between the plaintiff and the defendant Frederick S. Gaylord. He was the lessee, and tire sole contracting party, as such, in the lease; and the defendant Chester signed the same as his surety, and is not a lessee named m the lease, and he did not make Mmself a party -to the same, except as a guarantor, or, as he expressd it in words following his signature, as ‘security for Frederick S. Gaylord.’ ”

In Gould v. Moring, 28 Barb. 444, there was an agreement to pay rent of certain premises made by Heilberth. After his signature .appeared the words, “Security. H. E. Moring;” and it was held that, “the consideration not being expressed in the undertaking of the defendant, "it was void by the statute of frauds,” and in the opinion ■it was said:

“In tMs case the defendant undertakes as security for the tenant; that is, that he will pay if the defendant does not. A joint action will not he against " them both. They are not the same, but different and distMct contracts. De Ridder v. Schermerhorn, 10 Barb. 638; Allen v. Fosgate, 11 How. Pr. 218. It follows, therefore, that the present case falls directly withm the rule laid down in Brewster v. Silence, [8 N. Y. 207,] and, the consideration not being -expressed m the undertaking of the defendant, it is void, by the statute of frauds, as the same exists M tMs state.”

We think the plaintiff failed to make out a cause of action against "Luther Conklin. We think there was no error in the county court affirming the judgment as to Frank Conklin, and that the judgment rendered by the county court, as to Frank Conklin, should be affirmed by this court. The notice of appeal to the county court was signed in behalf of both defendants; so, too, the notice of appeal to this court. Evidence was given on the trial before, the justice tending to show that the defendant Luther, at the time of the execution of the lease, became aware that the plaintiff expected that he would be surety for the lessee and that his defense has more foundation in technical law than it has in the equities surrounding 'Ms case. ' Under such circumstances, we are inclined to affirm the judgment as to Frank ConMin, and to modify the judgment of the county court, so far as it affirms the judgment as to Luther Conklin, by providing that the judgment of the justice be reversed as to Luther Conldin, with $10 costs, besides disbursements in the county court, and that the judgment as so modified be affirmed, without costs to Luther Conklin in this court. Section 3063 of the Code of Civil Procedure provides that the appellate court may affirm or reverse the judgment of the justice in whole or in part, and as to any or all of the parties, and for errors of law or of fact; and section 3066, in subdivisioin 5, provides, viz:

“If the judgment is affirmed only in part, the costs, or such a part thereof, as to the appellate court seems just, not exceeding $10 besides disbursements, may be awarded to either party.”

Judgment of the county court modified so that the same shall contain a provision affirming the justice’s judgment as to Frank Conklin, with costs, and reversing the judgment as to Luther Conklin, with $10 costs and disbursements in that court, and the judgment, as so modified, affirmed, with costs of the appeal in this court to the respondent against Frank Conldin only, and without costs of the appeal in this court to Luther Conklin. All concur.