Finnegan v. Carahar

By the Court, Bockes, J. The action of ejectment, being a possessory action, should be brought against the party in actual occupation, and when brought against a tenant in possession, his landlord may, on due application, be joined with him, or be substituted in his place as #defendant, (2 R. S. 342, § 17.) Under section 118 of the Code as now amended, the landlord may be joined with his tenant as defendant in the first instance, (30 N. Y. 513.) So when the landlord defends in the name of his tenant [258] unsuccessfully, he will be held liable for the costs of the action, (5 N. Y. 558.) It seems, therefore, that the defendant in this case, although- not in possession, would have been a proper party defendant, with his tenant in occupation, had the plaintiff seen fit so to have brought his action. But thé recovery against the defendant as sole defendant, was allowed on the ground of estoppel. It was claimed that he, in effect, invited the action against himself, and having done so and induced the plaintiff to take the proceedings, that he is estopped from denying that he had the actual occupation at the time the action was commenced. When a person has induced another to act upon his statements or admissions made- for that purpose, he is concluded from asserting the truth, against such statements and admissions. This principle has been often applied in actions relating to real property. In the case of The Presbyterian Cong. of Salem v. Williams, (9 Wend. 147,) which was an action of ejectment, it was held that the defendant was concluded by his admissions made at the time of the commencement of the action, that there was not sufficient property on the premises, liable to distress, to countervail the arrears of rent. Mr. Justice Sutherland, delivering the opinion of the court, remarked: “I am clearly of the opinion that the defendant was estopped by that admission from contradicting the fact upon the trial.” He added: “ The plaintiff had a right to rely upon it, and the defendant ought not to be permitted to defeat the plaintiff’s action by showing what he then said was false, and thereby reap an advantage from his own wrong arid falsehood.” So, in Abeel v. VanGelder, (36 N. Y. 513,) it was said that when one invited an action »against himself he was not at liberty to claim that the action was not well brought against him. So, if'- a person, having a claim to real property, permits another to purchase without making-known his claim, he will not be. permitted afterwards to [259] assert his right, against such innocent purchaser. (1 John. Ch. 344. 3 Paige, 545. 27 Barb. 595. 53 id. 40. 32 N. Y. 105.) In Hall v. White, (3 Car. & P. 136,) which was an action in 'detinue, it was held that if one asserts that he has the property, and thereby induces the claimant to bring an action against him, he will be liable although such assertion' was untrue. Best, Ch. J. remarked that “ if the defendant said he had the deeds, and thereby induced the plaintiff to bring this action against him, I shall hold that they • may recover against him, although the assertion was a fraud on his part.” How, in the case at bar, if there was evidence bearing upon the question of estoppel sufficient for the consideration of the jury, there was no error in the charge of the learned judge, or in his refusal to charge as requested. The substance of his instructions was, that if the jury should find that the defendant, at the time of the commencement of the action, asserted or gave the plaintiff’s agent to understand that he was in the actual occupation of the premises, and that the action was commenced against him, on the faith of such assertions, the action could be maintained notwithstanding his want of possession. Such instructions were entirely correct, as the case stood upon the proof. There was in fact a very considerable amount of evidence .bearing on this point. It was made to appear that the defendant had formerly been in possession, and that the plaintiff had asserted his claim of title against him by a notification of his claim. It was fairly inferable, from the evidence, that the plaintiff sent his attorney into the neighborhood of the premises to make inquiries in regard to the enforcement of his right, by the commencement of an action if necesssary. He took with him a summons and complaint in blank as to the name of the person to be sued; pro-' ceded to the premises, and found the defendant there on the land. In answer to questions put to him by the attorney, he said he lived-there, and, in substance, that he [260] owned the house. Thereupon the papers were handed him, and he received them without making any explanations, or in any way correcting the impressions fairly deducible from his statements and acts. On this state of the case it becomes a question for the jury, on the evidence, whether the defendant did not give the plaintiff’s agent to understand that he was in the actual occupation of the premises, claiming to own them, and whether the action was not commenced against him on the faith of his assurances in that regard; In my judgment, the case was properly submitted to the jury; the instructions given by the -’court were correct, and were well authorized by the proof. [Saratoga General Term, November 11, 1869. Judgment affirmed, (a) Bockes, Rosekrans and Potter, Justices.] Footnotes [(a)] Above judgment affirmed by the Court of Appeals.