O'Dougherty v. Remington

14 N.Y. Sup. Ct. 514

• Court: New York Supreme Court
• Decided: April 15, 1876
• Status: Published

Opinion

Mullin, P. J.:

John O’Dougherty, at the time of his death, was the owner in fee of the paper mill premises. Patrick O’Dougherty was his only heir; he managed and controlled the property left by his father. There was no will nor any thing on record to show that John O’Dougherty had conveyed the property- to any person. Third persons had the right to treat with Patrick O’Dougherty as the owner, especially as the real owner concealed her title, and not only acquiesced in but ratified the acts of her husband in the management and disposition of said property, she having appointed him agent for that purpose.

As between her and the paper mill company, she was estopped from disputing her husband’s acts, done in good faith under the power, and in equity if not in law, she was bound, or rather the property was bound, by his acts and contracts. (Bodine v. Killeen, 53 N. Y., 93; Paley’s Ag., 247, and notes; Story’s Ag., §§ 444, 446; Wendell v. Van Rensselaer, 1 Johns. Ch., 344; Town v. Needham, 3 Paige, 545; Tilton v. Nelson, 27 Barb., 595; Storrs v. Barker, 6 Johns. Ch., 166.)

It is not necessary to inquire whether the acceptance by Patrick O’Dougherty of the paper company as tenant, and the receipt of the rent therefor, after it went into possession of the mill, operated as a surrender or abandonment of the lease to the defendants from John O’Dongherty. (Taylor’s Landlord and Tenant, 398, 399; Smith v. Niver, 2 Barb., 180.) As there can be no doubt as to the effect of the contract between Patrick O’Dougherty and the paper company to sell to the latter said mill property, such a transfer followed by occupation under the contract, and performance of some of the conditions by the purchaser, was wholly inconsistent with the continuance of the relation of landlord and tenant.

Por the purposes of this question, Mrs. O’Dougherty must be treated as the party contracting to sell, and it cannot, it seems to me, be doubted but that, if the contract had been been made by her, the lease would be deemed surrendered. (Peter v. Kendal, 13 E. C. L., 316.)

After the sale to the company, and giving it possession, it was legally impossible for the. defendants to be in possession as tenants of Mrs. O’Dougherty. She had parted with the right of possession, and could not, while the contract was in life, give the defendants a right of-possession.

If not, then she could not recover of the defendants for rent when she had deprived them of the capacity to enter and occupy.

The judgment must be reversed and a new trial granted,'costs to abide event, before another referee.

Present — Multjn, P. J., Smith and Noxon, JJ.

Judgment reversed and new trial gx-anted before another referee, costs to abide event.