Buge v. Newman

Per Curiam. The action is for rent under a lease, signed and sealed by defendant, as tenant, and one Lyon, “ as agent,” which lease covers premises belonging to plaintiff. The complaint was dismissed, at the end of plaintiff’s case, on the ground that plaintiff was not the real party in interest. The rule has been laid down by the Court of Appeals that no person can sue, or be sued, to enforce covenants contained in an instrument under seal, except those who are named as parties therein and who signed and sealed the same; which rule is not affected by the fact that the word “ agent ” is added to the name of one of the parties as it appears in the instrument, or that it appeared upon the trial that in the making of the contract the person, so described as “ agent ” in the instrument, was, in fact, acting as agent for the principal seeking to enforce the contract. Henricus v. Englert, [85] 137 N. Y. 488, 494. Where it appears from the instrument that the seal affixed is the seal of the person subscribing, who designates himself as agent, and not the seal of the principal, the agent only is the real party in interest who can maintain an action upon the instrument; and, in the absence of proof that the lessee had knowledge that such agent was acting for the owner, or had recognized the latter’s rights, and in the absence of an assignment of the lease to the owner, the latter cannot maintain an action on the lease under seal in his own nane to recover rent accruing thereunder, as the parties executing the lease under seal are the real parties in interest and alone are bound thereby; and the contract of lease under seal cannot be regarded as a simple contract and the sea) rejected as surplusage. Schafer v. Henkel, 75 N. Y. 378. In the case at bar, it is admitted that Lyon was, as a matter of fact, the agent of plaintiff in making the lease, and that the renit has not been paid. The defendant, as a defense to the nonpayment of rent, claims a constructive eviction; but the complaint was dismissed upon plaintiff’s evidence on the sole ground above stated, and the only question here presented is whether or not this case can be distinguished from the authorities above cited. The lease in suit was made on August 14, 1906, but the term commenced on October 1, 1906, and ran to October 1, 1907, and defendant moved out on July 17, 1907. The lease was practically a renewal of a former lease (between the same parties, i. e., Lyon, as agent, and the defendant), running from October 1, 1905, to October 1, 1906. It appears that, about the middle of August, 1906, but whether before or after the making of the lease in suit does not appear, but certainly some time before the defendant went into possession of the premises under said lease, plaintiff called on defendant in the leased premises, in response to a request from defendant, and had a conversation with defendant with regard to making repairs; that plaintiff told defendant that he was the owner, having bought the property from one Blinck, and that, as a result of that conversation, repairs were made in the leased premises. It further appears that the agent, Lyon, was without express authority from plaintiff to seal the lease, which, as a matter of law, re [86] quired no seal to make it valid. For all that appears, however, another suit may have been brought by Lyon to recover the very same rent; and it is not clear what valid defense could be interposed to such an action, so far as Lyon’s interest is concerned. Schafer v. Henkel, supra. It seems to us, that, notwithstanding the fact that the testimony of plaintiff is entitled not only to belief, but to all favorable inferences that can reasonably he drawn therefrom, it is not shown that defendant, at the time of making the lease, had knowledge of the title of plaintiff and the agency of Lyon, and recognized such title, and that the case at bar falls within the authorities above cited. Present: Gildersleeve and MacLean, JJ. Judgment affirmed, with costs.