
    Harry Evans, Resp’t, v. Frank W. Conklin and Luther Conklin, App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 23, 1893.)
    
    1. Lease—Execution.
    A lease is valid as between the lessor and the lessee who occupied under the same, although not signed by the lessor.
    2. Same—Parties.
    One not named in the body of the lease, who signs beneath the lessee without statement as to the nature of his signature, is not a party to the agreement so as to be liable as a joint lessee for the rent reserved.
    Appeal from a judgment of the county court of Onondaga county, affirming a judgment of the justice’s court in favor of the respondent for damages, $82.91; costs, $4.65, total, $87.56.
    “ Action to recover rent alleged to be due from Frank Conklin by virtue of a lease.
    
      J. E. Newell, for app’lt; William Kennedy, for resp't.
   Hardin, P. J.

Loughran v. Smith, 11 Hun, 311, is an authority for holding that the lease is valid between the plaintiff and the lessee who occupied under the same, notwithstanding the fact that it was not signed by the plaintiff; and the production of the lease and the proof given on the trial that the lessee, Frank Conklin, entered into possession of the premises 'and occunied the same and the rent had not been paid quite satisfactorily established a cause o£ action against Frank Conklin, the lessee.

(2) When the plaintiff rested, a motion was made to “ dismiss the complaint as against Luther Conklin on the ground that he is not a party to the lease and is not liable thereon;” and second, that there is no evidence that will warrant a judgment against Luther Conklin or against any defendant that will support a joint judgment in this action.” The motion was denied. Thereupon Luther Conklin was sworn as a witness, and he was asked : “ Did you sign the lease as a subscribing witness only ?” This was objected to, and the objections were sustained. The following question was then put to him: “ Did you ever sign that paper, plaintiff's exhibit A,' except as a witness to the execution of it?" This was objected to, and the objections were sustained. At the close of the evidence a motion for a non-suit was renewed on the whole evidence on the same grounds and on the further grounds, “ That the plaintiff has not signed the lease, and the minds of the parties did not meet, and the lease is void." The motion was denied. The lease produced bore date January 10, 1891, and read as follows : “ This article of agreement made and entered into this 1st day of February, 1891, by and between Harry Evans * * * party of the first part, and Frank W. Conklin * * * party of the second part, witnesseth, that the party of the first part agrees to let, and by these presents does let unto the party of the second part, for the term of one year, his farm situate in the town of Fabius." Many other stipulations are found in the lease, and there is nothing in the body of it nor in any attestation clause indicative that Luther S. Conklin was in any way a party to the agreement. However, his name appears to have been written immediately under the name of the lessee, Frank W. Conklin.

In Decker v. Gaylord, 8 Hun, 111, it appeared that a lease had been signed by the lessee,, and thereafter appeared the words “ Chester Gaylord, security for Frederick S. Gaylord; ” and in the course of the opinion delivered in that case it was said that the defendants were not joint lessees of the plaintiff and that they could not be held liable upon the lease given in evidence in that capacity; and in the opinion it was said: “ The lease was clearly a contract between the plaintiff and the defendant Frederick S. Gaylord. He was the lessee and the sole contracting party as such in the lease, and the defendant Chester signed the same as his surety, and is not a lessee named in the lease, and he did not make himself a party to the same, except as a guarantor, or as he expressed it in words following his signature, as ‘security for Frederick S. Gaylord.’ ”

In Gould v. Moring, 28 Barb., 444, there was an agreement to pay rent of certain premises made by Heilbert; after his signature appeared the words, “ Security, H. E. Moring," and it was held that “ The consideration not being expressed in the undertaking of the defendant, it was. void by the statute of frauds and in the opinion it was said: “In this case the defendant undertakes as security for the tenant; that is, that he will pay if the defendant does not. A joint action will not lie against them both; they are not the same, but different and distinct contracts. De Ridder v. Schermerhorn, 10 Barb., 638; Allen v. Fosgate, 11 How. Pr., 218. It follows, therefore, that the present case falls directly within the rule laid down in Brewster v. Silence, and the consideration not being expressed in the undertaking of the defendant, it is void by the statute of frauds, as the same exists in this state.” We think the plaintiff failed to make out a cause of action against Luther Conklin. We think there was no error in the county court affirming the judgment as to Frank Conklin and that the judgment rendered by the county court, as to Frank Conklin, should be affirmed by this court. The notice of appeal to the county court was signed in behalf of both defendants; so too the notice of appeal to this court. Evidence was given on the trial before the justice tending to show that the defendant, Luther, at the time of the execution of the lease, became aware that the plaintiff expected that he would be surety for the lessee, and that his defense has more foundation in technical law than it has in the equities surrounding his case.

Under such circumstances we are inclined to affirm the judgment as to Frank Conklin, and to modify the judgment of the county court so far as it affirms the judgment as to Luther Conklin by providing that the judgment of the justice be reversed as to Luther Conklin, with ten dollars costs, besides disbursements in the county court, and that the judgment, as so modified, be affirmed, without costs to Luther Conklin in this court.

Section 8063 of the Code of Civil Procedure provides that the appellate court may affirm or reverse the judgment of the justice in whole or in part and as to any or all of the parties, and for errors of law or of fact; and § 3066 in subd. 5 provides, viz: ‘‘If the judgment is affirmed only in part, the costs, or such a part thereof as to the appellate court seems just, not exceeding ten dollars besides disbursements, may be awarded to either party.”

Judgment of the county court modified so that the same shall contain a provision affirming the justice’s judgment as to Frank Conklin, with costs; and reversing the judgment as to Luther Conklin, with ten dollars costs and disbursements in that court; and the judgment as so modified affirmed, with costs of the appeal in this court to the respondent against Frank Conklin only,, and without costs of the appeal in this court to Luther Conklin»

Merwin and Parker, JJ., concur.  