Gregory v. Michaels

Ehrlich, Ch. J. Without considering the technical objection as to the sufficiency of the notice of appeal to entitle the appellant to a review on the merits, it is clear that the judgment below is right. [196] The action is on an indenture of lease executed by the plaintiff “ as executor of the last will and testament of Hester A. Gregory, deceased,” as landlord, to the defendants, as tenants. By joining in the execution of the lease, the defendants-admitted the representative character of the plaintiff and his-right to sue upon the contract, and are now estopped from disputing the authority. Farnham v. Mallory, 2 Abb. Ct. App. Dec. 100; 3 Keyes, 527; 5 Abb. Pr. [N. S.] 380; Hall v. Lather, 13 Wend. 491; Tilyou v. Reynolds, 108 N. Y. 558. This, upon the same principle that a person contracting with a corporation, is estopped from questioning the corporate existence. Holmes v. Stietz, 2 City Court R. 77. The defendants having admitted by their contract the representative character of the plaintiff, cannot question jj; now, nor require the court to indulge in the presumptions against the lessors’ light to contract or sue upon its covenants. For these reasons the judgment appealed from must be affirmed, with costs. Fitzsimons and Newburger, JJ., concur. Judgment affirmed.