Bend v. Hoffman House

30 Misc. 729, 62 N.Y.S. 1081

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1900
• Status: Published

Opinions

Freedman, P. J.

The plaintiffs, in this action, appeal from a judgment in favor of the defendant for costs, rendered after a trial of the issues by the court, without a jury.

The action was brought to recover the sum of $239.96, being the amount assessed for Croton water rents upon certain premises for the years 1882 and 1886, leased to one Edward S. Stokes, which water rents Stokes, by the terms of such lease, had covenanted to pay. The plaintiffs’ right to recover of the defendant herein rests upon the claim made by them, that, in 1894j at the time of the making and execution of a lease for the same premises, between Isaac Townsend and Stokes, it was agreed by Stokes as part of the consideration for the making of such lease by Townsend, that Stokes should pay all the back taxes for water rent assessed against the premises, and that Stokes, at the time of making such agreement, was a director of and acting for the defendant. The plaintiffs allege in their complaint, that they are the heirs and next of kin of Mary E. Townsend, deceased, and are the sole remaindermen of said premises, under the last will of Isaac Townsend, deceased, and are the owners of the claim against the defendant. This was denied by the defendant in its answer. The proof, given upon the trial by the plaintiffs, fails to sustain those allegations. The plaintiffs sought to show that Stokes made the alleged agreement with one John McLean Nash, who, it appears, was the attorney for Isaac Townsend when the lease of 1894 was made. Stokes, who testified to the making of .the agreement, was asked by the plaintiffs’ attorney, upon the trial, if he saw Nash, the agent of the owners, in regard to the extension of the lease, and he said he did. Who those owners were does not appear. That léase was executed by Isaac Townsend alone, as party -of the first part. The will of Isaac Townsend, deceased, was offered in evidence,- undoubtedly for the purpose of showing that the said deceased had devised the premises, mentioned in the lease, to these plaintiffs. The will names Isaac Townsend, Jr., Amy 0. Townsend, Elizabeth Townsend, Sarah Helen Townsend and Mary Alice Townsend as legatees and devisees therein. There is nothing to show that they are the persons named as plaintiffs herein, nor is it alleged or proven that these plaintiffs derived their title to the claim sued upon, or a right of action thereon, by assignment or otherwise, and it does not appear by the record that they are the real parties in interest. There being a failure of proof, the judgment of the trial court was correct, and must be affirmed.

Leventbitt, J., concurs.