
    William H. Earle, Respondent, v. Francis McGoldrick, Appellant.
    (New York Common Pleas—Additional General Term,
    December, 1895.)
    1. Summary proceedings—Petition.
    . An allegation in the petition in summary proceedings that the petitioner became the owner of the premises by deed from certain persons, and that defendant was in possession as tenant under an alleged agreement of hiring with such persons, is sufficient to show the relation of landlord and tenant between the parties.
    3. Lease — Execution by only one trustee.
    A lease of trust property for a term of years which is executed by only one of the trustees is void.
    3. Same—Execution in wrong capacity. .
    A lease is also void when executed by the lessor as executor after he has been discharged as such and while holding the title merely as trustee.
    4. Summary proceedings— Jurisdiction op District Court.
    . The District Court has power "in a summary proceeding to adjudge void a lease .from petitioner’s predecessor under which the .defendant claims to be holding.
    5. Same—Equitable rights op tenant.
    Equitable rights of a tenant .cannot be enforced in a District Court in a summary proceeding against him, but only in an equitable action to restrain the landlord.
    Summary proceedings to recover the possession of certain premises situated in the city of New York.
    
      George W. McAdam, for appellant.
    
      Truax & Crandall, for respondent.
   Bookstaver, J.

The appellant claims that the petition was defective in failing to show, that the conventional relation, of landlord .and tenant existed between the parties. The petition, dated' May 4, 1895, alleged that the petitioner became the owner of the premises by deed from John P. Weis and Margaretta Herlt, ás executors, etc.,. dated October 1, 1894.; that the. defendant was in possession as tenant for-a term ending May 1, 1895, under an alleged agreement o"f hiring with Márgaretta. Herlt, and still occupied the premises; that a' notice to. quit was served on him' on or about'November 30, 1894, requiring him to'give- up possession May 1, 1895; that the -defendant' held over and continued in possession without the permission of your petitioner, said ,-owner and landlord.” These averments, we think, were quite sufficient, and .set forth- the relations of the parties with .more particularity than was done . in Norsworthy1 s Estate v. Brycm, 33 Barb. 153, which was held sufficient. We also think .that the' Margaretta Herlt, executor, etc., named in the petition, was sufficiently identified with the Márgaretta' Herlt described as executor and'trustee under-the last will and testament'of. John H. Moore, deceased,'and as one of the grantors in the deed set forth in the petition. If there was any question as to such identity it was open ’-to the defendant to raise it in his. answer, and he should have done so. From the petition it appeared that the conventional relation' of landlord and tenant existed between the lessee and the assignees or grantees- of the lessor, provided there was a conventional relation between the original .parties. McAdam Landl. & Ten. 619; Birdsall v. Phillips, 17 Wend. 464; Matter of Miller v. Levi, 44N. Y. 489. The petitioner showed that he was the grantee of the lessor in this cáse','and thereby became the -landlord of the defendant. Until May 1,1894,- the. defendant- had occupied the .premises under a lease"-from Margaretta Herlt, as executor, etc.-. Upon the trial he claimed that he was entitled to possession under a new lease for five years from May 1, 1894. This lease purports to have been made by Mrs. Mohr as party of the first part,-but it was signed .by Margaretta Herlt,- executor, and the defendant. It was, therefore, void as -against the executors áúd any one claiming through them; being signed only by one of. two trustees. Hill Trustees, 305 ; Anon. v. Gelpcke, 5 Hun, 245; 255; Busse v. Schenck, 12 Daly, 12. The tenant was, therefore, at most' a tehant from year to year. Talamo v. Spitzmiller, 120 N. Y. 37; Laughran v. Smith, 75 id. 205.

The lease last mentioned was also void because executed by Margaretta Herlt as executor, whereas it appears from thq return that before executing such lease the executors had fully accounted and were discharged, and the property was at the time of the making of the lease held by them as trustees and not as executors.

But counsel for the tenant contended that the judge before-whom this proceeding was taken had no power to adjudge the lease void, seeming to assume that it required some equity jurisdiction in order to make such an adjudication. In this we think he is in error. District Courts have to pass daily upon the legality of contracts submitted to them for decision, and to say whether they are void or of binding .force. The determination of this matter required no more. The -lease was either void at law or of full force, and it was the province of the judge to determine that question, and we think he determined it correctly for the reasons above stated. Indeed, in proceedings of this kind, he must frequently' determine whether .the instrument relied on is a lease or not, and it has * been held in proceedings of this nature that the lessee may show that the instrument which purports to Create the relation of landlord and tenant between the parties constitutes in fact * a mortgage to secure the repayment of a loan and that such a mortgage was void for usury and was not a lease. People ex rel. Ainslee v. Howlett, 13 Hun, 138; 76 N. Y. 574. It has also been held that in summary proceedings it may be shown that the lease is void where the * tenant answers he has held over thereunder. Dickinson v. Price, 64 Hun, 149; People ex rel. Ainslee v. Howlett, supra; In re Wright, 16 N. Y. Supp. 808. Indeed, the tenant by his answer set up the lease , in question, and claimed the right to. hold thereunder for the full period of five years from the 1st of May, 1894, thereby raising the very question determined by the judge.'

The tenant also claimed that the landlord was estopped by the recital in the deed from Weis and Herlt to him, which contained the following clause: “ Subject to any lights - Francis McGoldrick, or those claiming under him, may have in the above-described' premises, or any part thereof.” Had the lease itself been recited in the deed there -might have been a foundation, for such claim. -Such, however, was -not the case. It is nowhere referred to in the deed. The only thing reserved to Francis McGfoldrick were “ any rights ” he might have in the premises. These rights must, of course, be either legal or equitable, and cápáble of - enforcement in a.court-of law or equity. But it is clear that the lease relied upon was invalid at law, and could create no right in the tenant. Sinclair v. Jackson, 8 Cow. 543, where it was said: “ The defective lease would- be inoperative at law, and must yield to the legal title acquired by the'/purchaser. •* * * Hor was it legally available to -the defendant .* ■* * to show that the mortgage was taken -subject to the' lease, or that .the master’s sale was with -knowledge of -the. lease and-subject thereto, For- the evidence, * * if admitted, would -not confirm the lease, or render it valid, for, being absolutely ■void,' it was incapable of confirmation at law.”

If the tenant had any. right- in-equity which' he could enforce, then, under his own theory of the powers of the District Court, such equity power could not be entertained' in th'ose courts - in proceedings like-these, and he should have' resorted to an action in equity to' restrain the landlord.

Due notice to- quit having been given by the landlord to the tenant, he held over without right, and the final order dispossessing him was proper, and should be - affirmed, with '■costs'..

Bischoff, j., concurs'..

Final, order affirmed, with, costs..  