
    Jonathan D. Manette, Resp’t, v. William Simpson, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    Parties—Lease—Principal and agent.
    In an action upon a lease, the tenant, defendant, set up that plaintiff was not the real party in interest, as he was merely the agent for the owner of the farm. Held, that as the contract was in writing, not under seal, and does not, upon its face, disclose the existence of the relation of pri-cipal and agent it could he maintained by the principal or agent in either of then’ individual names.
    Appeal from a judgment of Sullivan county court, affirming a judgment of a justice of the peace. The action was upon a written lease of a farm, which lease was executed by the parties March 28, 1890. The lease provided that the defendant should pay the plaintiff the sum of seventy-five dollars ($75) as rent for one year, payable on the 1st of October, 1890. The proof shows that the defendant occupied under the lease, that the rent was past due and had not been paid.
    
      Charles H. Stage, for app’lt; George H. Smith, for resp’t
   Mayham, J.

—The plaintiff prosecutes this action to recover rent which he claims is due him on a lease, of which the following is a copy:

“ It is hereby agreed between J. D. Manette of the first part, and William Simpson of the second part, that the said J. D. Manette agrees to rent to the party of the second part the farm situate near Thompsonville, and known as the Highston farm, now owned by Catherine Whitney, on the following conditions : The party of the second part agrees to pay seventy-five dollars and the highway tax for the use of the farm and buildings for one year from the first day of April, 1890, to the 31st day of March, 1891, payment to be made to the said party of the first part on or before the first day of October, 1890; if said party of the second part fails in his payment as agreed, then the hay and all the crops on the farm shall be holding for the same until said payment is made; and he further agrees to put up at least two-thirds of the hay raised on the place, and in case any part of the one-third of hay is left, he is to give the said J. D. Manette the first refusal of it. The party of the first part further agrees to furnish materials for and have the fences around the house and barn repaired in good order. The party of the second part rented for one year, with the privilege of three years on the same terms; the party of the first part reserving the right to sell at any time.
“ Dated the 28th of March, 1890.
(Signed) “J. D. Manette,
“Wtt Simpson.”

The answer, among other things, sets up that the plaintiff is not the real party in interest, and it appears in proof that the farm belonged to Mrs. Whitney and that the plaintiff acted as her agent. On this evidence the defendant asked that the plaintiff’s complaint be dismissed, which motion was denied, and the defendant excepts and now claims that the justice erred, and that the judgment should for that reason be reversed.

The contract was in writing, not under seal, and is between the plaintiff and defendant, and does not upon its face disclose the existence of the relation of principal and agent. In such a case the action may be maintained either by the principal or agent in either of their individual names. Considerant v. Brisbane, 22 N. Y., 389 ; Schaefer v. Henkel, 75 id., 378; Ludwig v. Gillespie, 105 id., 653; 7 N. Y. State Rep., 527. The action was, therefore, properly brought in the name of the lessor.

There was no error committed by the justice in receiving or excluding evidence for which the judgment should be reversed.

The conflict in the evidence as to. the agreement to furnish material for fencing made it a question of fact, and the decision of the'justice on such disputed facts cannot properly, under the evidence in this case, be reversed on this appeal.

Judgment of the justice and the county court affirmed, with costs.

1 Learned, P. J., and Landon, J., concur.  