Mayor v. Kent

By the Court.—O’Gorman, J. This is an appeal from a judgment entered against the defendants upon a trial at the special term, a trial by jury being waived. [116] The action was brought for the recovery from the defendants, as sureties, upon a bond executed by them, to secure the performance by “ Mary Kent ” of the covenants of a lease made by the plaintiffs to ' her, of certain premises in the city of New York, of which the plaintiffs were owners. The lease was for a term of two years, from May the first, 1877. The lessee entered on the premises and occupied them, according to. the terms of the lease, until May the first, 1879, leaving rent unpaid, amounting to $750. The lease was executed in counterpart by “ John Kelly, Comptroller,” on behalf of the plaintiffs, and the lessee received one counterpart lease, at' the time of its execution. The defence is that this lease, so called, was invalid, void, and of no force or effect, on either the lessors or lessee, because executed by “ John Kelly, Comptroller,” inasmuch as he was not the proper officer of the plaintiffs to execute said lease on their behalf; and, further, because the clerk of the common council had not signed said lease, and attached the seal of the corporation thereto. The defendants contend that the lease, being thus void, and incapable of conveying any title or interest in the premises to Mary Kent, the bond executed to secure her performance of the covenants in the lease, set forth, was also void, and of no binding force or effect as against them. They further contend that, by reason of certain fatal defects in the bond itself, it is void. The material facts are these : The “ commissioners of the Sinking Fund,” under authority of law giving them full power to execute leases on behalf of the city adopted a resolution that the “ comptroller ” be authorized to lease the premises in question, and he proceeded to carry the resolution into effect, and executed, signed and [117] sealed the lease to “ Mary Kent.” § 102, ch. 335, Laws of 1873. The lease and bond were prepared by the counsel of the plaintiffs, and there is reason for the presumption that any defect' in the lease or bond was, the result of inadvertence on his part. The defendants contend that the law required that the lease should be signed by the clerk, and the seal of the corporation affixed, and that the signature of “ John Kelly, Comptroller,” without the corporate seal, was a fatal defect, and cite various judicial decisions in support of their proposition. I have examined these decisions, and I do not think that they sufficiently sustain that proposition. On the contrary, the prevailing current of more recent judicial authority seems to me. in favor of giving effect to corporate acts, even where formalities and preliminaries prescribed by law have been neglected, provided the manifest lawful intention of the corporation be thereby carried into effect, and there is no element of fraud in the transaction itself, and no violation of justice and equity. This rule of law is held to apply with special force to cases where, as in the case at bar, the contract in dispute has ceased to be merely executory, but has in fact been in part carried- out, and where the party dealing with the corporation, having enjoyed the advantages of the contract, seeks to escape from the performance of its obligations, on the ground of defect in its text, or formal execution. Mayor v. Sonneborn, 113 N. Y. 423. This liberal application of the principles of law is sustained in Kent v. Quicksilver Mining Co., 78 N. Y. 183 ; Whitney Arms Co. v. Barlow, 63 Ib. 62 ; The People, ex rel Schanck v. Green, 64 Ib. 501 ; Woodruff v. Erie R’y Co., 93 Ib. 609 ; Rider Life Raft Co. v. Roach, 97 Ib. 378, 381 ; and in Starin v. Edson et al., 112 N. Y., 206 ; N. Y. State Reporter, Vol. 20, No. 5, pp. 898, 903. [118] For these reasons, the execution of the lease by the “ comptroller," was not, in my opinion, void, but, at the most,- an informality, capable of being at any time, cured, on demand of either party, and, if not objected'to within reasonable time, the parties are estopped by their own laches from complaint. The claim of the defence, that the sureties are not bound, by reason of defect in the execution of the lease, is, therefore, not sustained, The defendants further object that, independently of any defect in the lease, the bond itself was void, because not executed by “ Mary Kent,” the lessee. The bond here was joint and several, and binds all those, severally, who execute it. The intention of the defendants in executing the bond sufficiently appears. Williams v. Marshall, 42 Barb. 528 ; Dillon v. Anderson, 43 N. Y. 235 ; Parker v. Bradley, 2 Hill. 584 ; Decker v. Judson, 16 N. Y. 439 ; Loew v. Stocker, 68 Penn. St. 226. The proper time for raising these objections was when these documents were executed, or soon after. It is too late to raise them now, after a long and almost suspicious silence, when their interposition only tends to promote injustice. I am of the opinion that no error was committed at the trial, and that the judgment appealed from, should be affirmed, with costs. Sedgwick, Ch. J., and Freedman, J., concurred.