
    James Roosevelt et al., Appellants, v. C. Edgar Smith, Impleaded, Respondent.
    (City Court of New York, General Term,
    June, 1896.)
    Lease — Counterparts — Statute of Frauds.
    In an action for rent under a lease the plaintiffs introduced in evidence a counterpart signed only by the lessee, which contained a statement that the parties thereto had interchangeably set their hands and seals thereto. Production of the other counterpart had been demanded and refused. Held, that the lessee by signing the counterpart containing such a statement admitted the existence of a counterpart signed by the lessors and waived the Statute of Frauds; that by occupying the premises thereunder he was estopped from denying his admission, and -that the counterpart introduced was, under the circumstances, the best secondary evidence of the existence . ' of the one signed by the lessors.
    Appeal from an order denying a motion for a new trial and from a judgment dismissing the plaintiff’s complaint.
    Franklin B. Lord, for appellants.
    0. Edgar Smith, for respondents. ' - ■
   O’Dwyer, J.

The action was brought to recover rent due and unpaid -under a certain indenture of lease, executed by the predecessors of plaintiffs in the trust to the defendants. • ..

On the trial the plaintiffs introduced in evidence the counterpart of the lease signed and sealed by the defendants, which lease purports to be entered into between Philip Kiss am and others, trustees for John Jacob Astor, under the will of William Astor, deceased, parties of the first part, .and John A. Payne, 0. Edgar Smith and Henry E. Hunt, parties of the second part; and at the end of said lease is the following admission: •

In witness whereof, the parties to these presents have hereunto interchangeably set their hands and seals, the day and year first above written.” •

Notice to produce the counterpart of the lease in the possession of defendants was' proved, and defendants refused to produce the ■same, asserting that they, never had it in their possession. .

. The complaint was dismissed-upon the ground that the evidence, produced was not sufficient to sustain the cause of action described' in the complaint in that it was necessary, before plaintiffs could recovery to show a contract, and that, the instrument introduced did not show that. It is now insisted by the respondent, in support .of the judgment, that the counterpart, lease introduced by-the plaintiff is obnoxious to the following provision of the Revised Statutes:

“ ¡No estate or interest, in lands other than 'leases for a term mot' exceeding one year, nor any trust nor power in and concerning lands or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed of conveyance in writing subscribed by the párty creating, granting,. assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing.”

And' further, that, the Statute of Frauds has the agreement declared on within its provisions, which provide: ' •■

“ Every contract for leasing for a longer period.than one year, or for the sale of any- lands or' any interest in lands, shall b.e" void, unless the contract, or some nóte or memorandum thereof expressing the consideration, be in writing and'be subscribed by the party by whom the lease or sale is to be made.”

We think it clear that neither objection is. well taken. The action was on the defendant’s.covenant to pay rent, and the counterpart of the- lease put in evidence was the direct primary evidence of that fact-; it was also primary evidence of the execution- and delivery to the tenants of a lease.executed by the landlords and of the consideration for the covenant to pay rent.

■ In Roe v. Davis, 7 East, 363, where a counterpart of a-lease had been offered and received in evidence against- the objection that no notice to produce had been given, Lord Ellenborough, O. L, said: “ The acknowledgment of the original lessee under his seal, that he held these premises under his landlord upon the conditions and' covenants therein expresed, was sufficient evidence of the holding upon such terms against one holding under the lease.” See, also,' Houghton v. Koenig, 18 0. B. 235.

- In Grreehleaf -on Evidence the rule-is stated that “ when a document is executed in counterpart, each counterpart is primary evidence as against the party executing it.” : 1 Greenl. on Ev., § 84, note.

In Wharton on Evidence, § 74, The rule-is also stated that “ Where - a’ contract is executed in counterparts’,' each, party signing only the counterpart by which he is bound, and delivering such counterpart to the other party, each counterpart is primary evidence against the party signing it and those claiming under him.”

In Taylor on Evidence, '§ 426, it is said that “ When, however, each part is executed by one party only, as often occurs in the case of leases, the two instruments are called counterparts, and each is alternately the best evidence against the party sealing it.”

The rule is laid down in Stephens’ Digest of Evidence, Article 64, that “ "Where • a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.”

In the case of Hallett v. Collins, in the United Sw+»r Supreme Court, reported in 10 How. (U. S.) 174 (184), the court said: “ The first objection is that Collins did not sign the indenture or articles of agreement of Hovember 21, 1806, and was, therefore, not bound to convey to Kennedy; and there" was, therefore, no consideration which could make the deed binding on him. But the-deed on its face purports to be an indenture, of which Collins, from the nature of the transaction, would be holder of the counterpart signed by Kennedy. The original, which is signed" by the grantor, would be in possession of Kennedy, the grantee, who cannot object to the validity of his covenant because a paper is not produced which, if in existence, is in his own possession.

Much less could he be heard to make this allegation after the contract has been executed by his own deed, sealed and delivered in pursuance of it.” '

The defendant Smith, by executing the counterpart of the lease, admitted the facts therein stated and - the letting by the landlord, and is fully bound thereby, 'and the" plaintiffs have sufficiently proved such facts..

An admission is the voluntary acknowledgment by a party of the existence or truth of certain facts. 1 Bouv. Law. Dict. 89.

Over his signature and seal the defendant Smith admits that the parties to the lease have thereto interchangeably set their hands and seals. -

This is an admission of the existence of the fact that the parties of the first part and the parties of the second part have interchangeably set their hands and seals to the lease.

That is, the parties of each part have signed one counterpart each and then exchanged them. See 2 Burrill’s Law Diet. 89; under head of Interchangeably; in the way, mode or form of exchange. A term constantly used in th¿ concluding- clause of indentures (in witness whereof, the -said parties have hereunto interchangeably set their hands and seals) and properly imputing not only an execution by all the partie's, but an actual interchange of signatures and'seals and such as takes place in the case of instruments executed, in duplicate, or in part and counterpart, where the signature and seal of each party are affixed to the part given to the other.”

Statements contained in deeds are competent evidence against the parties executing them. Demeyer v. Legg, 18 Barb. 14; Hardenburgh v. Lakin, 47 N. Y. 109.

The defendant Smith, therefore, admits a counterpart indenture. signed and sealed by Philip Kissam, William Cruikshank and George Lord Day, as trustees for John Jacob Astor.

The plaintiffs having, served upon the defendant Smith a. notice •to produce on the trial the counterpart signed by the landlords, in his possession or under his control, and he having refused so to do, the counterpart lease in evidence, by .which the defendant Smith admits the signing and sealing of the parties interchangeably, at once becomes in any case the .best secondary evidence of the counterpart lease executed by the lessors.

The Statute of Frauds is fully satisfied if there was'atany-timea contract required by its provisions. Wood Stat. of Fr., § 345; 8 Am. & Eng. Ency. of Law, 711.

Here the existence of the lease, signed and sealed by. the trustees for John Jacob Astor, etc., is-fully established by .tire voluntary- and uncontradicted admissions Of the defendant Smith.'

The Statute of Frauds places no prohibition on the form, way-or manner of the making of contracts. The parties may still make them in any way they see fit.

The- statute simply requires that certain- agreements shall be in' writing.'

It introduced a new rule of evidence in certain cases without, condemning as illegal any contract that was legal before.

The Statute of Frauds is a shield which a party may use or not for his protection, just as he may use the Statute of Limitations, the statute against usury and that, against betting and gaming. Crane v. Powell, 139 N. Y. 379. Hence it follows that the defendant Smith, when he signed the. counterpart'of the lease in evidence, waived the statue of frauds- in this case,- by admitting the lease to bé signed and sealed by the lessors.

' And the lessors having permitted the defendants to enter upon and occupy the premises upon the faith of the counterpart lease signed by the defendants, the defendant Smith is now estopped from denying the truth of the statements therein contained; Stephens’ Dig. of Ev., § 188; New York Rubber Co. v. Rothery, 107 N. Y. 310.

The judgment and order appealed from should be reversed and new trial granted, with costs to appellant to abide the event.

Van Wyck, Ch. J. and Conlan, J., concur.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  