
    Robert Ernst, App’lt, v. Dartus G. Crosby, Ex’r., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 12, 1893.)
    
    Lease—House oe prostitution.
    On reference of a claim against a decedent’s estate for rent under a lease executed by him by plaintiff's predecessor, it appeared that prior and subsequent to its execution the premises were occupied by other persons as a house of prostitution; that negotiations for the lease were had with such persons and a lease drawn to them, but subsequently altered so as to run to decedent; that the lessor was intimate with such persons and that he subsequently collected the rent from them. He!4, sufficient to warrant a finding that the premises were let for the purpose of being used as a houae of prostitution, notwithstanding a clause in the lease that they were to be used “fora dwelling house only,” and that the lessee should “obey all lawful requirements of the health department and all other departments of the city government.”
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of defendant, entered on the report of a referee.
    
      E. J. Spink, for app’lt; Theodore H. Silkman, for resp’t.
    
      
      Affirming 50 St. Rep., 429.
    
   Gray, J.

As a defense to the claim for rent against the estate in his hands, the executor asserted the invalidity of the lease, for having been made by the lessor for an unlawful purpose. The evidence showed that the house had been used and occupied by the Clarks for purposes of prostitution. Mowatt, the defendant’s testator, had, probably, been the lessee of the premises under a lease from the original owner, McGinn. It is true that the evidence does not absolutely show this ; but it is sufficient to justify the inference of the fact, and of the further fact that Mowatt sustained close relatians with the Clarks. McGinn sold to Morris, and the conveyance was made subject to the lease of the premises, but without mentioning the name of the lessee. Morris, before his purchase, lived near to, and frequented the house, and knew perfectly well the nature of the use to which it was put by the Clarks.

The existing lease was to expire a few days after the date fixed for Morris to take title under his contract of purchase. Mrs. Clark testified that Morris had promised to give them a new lease, and had negotiated with respect to it. She went to his lawyer’s office, as she says, by his direction, for the purpose of getting the new lease, but though one was drawn up at first to her and her husband, it was subsequently destroyed. Morris refused to give the lease to them, and executed one to Mowatt, which provided that the premises should be “ used as a dwelling house only,” and that the lessee should, “ obey all lawful orders of the health depart- - snent and all other departments of city government.” It does not appear affirmatively that Morris saw the lease existing at the time of his purchase, or knew that Mowatt was the lessee therein. There was abundant evidence to show his familiarity with the leased premises, his relations with the tenants, and his knowledge concerning the inmates of the house and its uses, and from his connection with Flanagan, who formerly collected the rent for the lessee, and from the testimony óf his lawyer, it is difficult to resist the inference that he knew enough about Mowatt. After owning the premises for some months, he sold them to the plaintiff, subject to the lease ; the Clarks remaining in possession, and continuing in their immoral practices. The referee found that the plaintiff bought in ignorance of the character of the occupation; and it is insisted for him, that the lease, being on its face for a lawful purpose, cannot be rendered void by mere inference from facts which do not conclusively show an unlawful purpose in Morris, the lessor, in making the lease to Mowatt. If the lessor of premises knows and intends that they will or may be used for unlawful purposes, the lease is void, and the obligations, of the parties will receive no aid from the courts for their enforcement, In such a case, it is perfectly competent to show that knowledge and intent by circumstantial evidence, for, otherwise, it might be impossible to prove the immoral purpose which underlay an apparently innocent contract of the parties. All that is required is that the evidence adduced shall be fairly susceptible of the inference that the agreement was in furtherance o f an unlawful purpose. In the present case, while the contract of lease, by its terms, restricted the use of the premises to an apparently lawful purpose, yet if there was any competent evidence which showed, or which tended to show, that it was but a cover for their continued use by the Clarks in their immoral business, it would support the decision of the referee. The evidence was purely circumstantial; but the circumstances were such as warrant the belief that Morris, plaintiffs grantor, was a party to a plan for continuing the Clarks in their use of the premises, through a new lease; but in such wise as not to imperil its validity.

Though it is not directly testified to that he had known his lessee, Mowatt, the facts tend strongly to show that Mowatt’s name was used as a mere cover in the further letting of the house after Morris became its purchaser. It may be because the character of Mrs. Clark was tainted, that her evidence was open to disbelief; but the referee was not bound to discredit her wholly. There were facts which tended to corroborate her evidence ; in Morris’ intimacy with her and her husband and with the inmates of their house and in his collecting the rent from the Clarks, notwithstanding his lease was to Mowatt. The intention with which a man enters into a transaction may be inferred from his acts. They may so characterize his purpose as to indelibly color the transaction, notwithstanding its innocent appearance. It is of no slight significance that Morris was not called as a witness. It would have been very easy through his evidence to lessen, if -not resolve, the doubt as to his purpose and as to his relations with Mowatt when this lease was made. The plaintiff, when he negotiated for the purchase and became the owner of the premises from Morris, had the opportunity to ascertain about the lease and the use by lessee, or tenants, and if he did not avail himself of them or have resort to the rights which the law gave him, he cannot have relief from the courts under the covenants of a contract, which, by reason of its unlawful purpose, came under the ban of the law.

We see no material errors committed by the referee upon the trial, and we are satisfied that his conclusions had support in the evidence.

The judgment appealed from should be affirmed, with costs.

All concur.  