
    Sarah Lazarus et al., Appellants, v. Bernhard J. Ludwig, Respondent.
    (Supreme Court, Appellate Term,
    June, 1896.)
    1., Appeal — Change oí attitude not allowable.
    .Where the petitioner in summary proceedings insisted upon the trial .'that the lease was In writing and disavowed any oral lease, he cannot' • be heard upon appeal from an adverse decision to claim that his petition was founded upon an oral lease.
    8. Partnership — One partner cannot , bind the other individually.
    The mere existence of a partnership relation does not authorize one-partner to bind the other by an agreement assumed to be in his behalf as an individual.
    ■ Appeal from a judgment or final order of the District Court- in the city of New York for the third judicial district, dismissing the landlords’ petition in summary proceedings to recover the posses- , sio-n of real property after the alleged expiration of the term, .instituted pursuant to the provisions of sections 2231, etc., of the Code of Civil Procedure. ' • ",
    -" Nelson S. Spencer,, for appellants.
    William Strauss, for .respondent. ' ..
   Bischoff, J.

The proceeding was to recover the possession of the premises known as No. 36 West Fourteenth street, in the city of New York, for the alleged expiration of the term on May 1, 1896.

r It was alleged in the petition that the petitioners were the landlords of the premises; that on or about June 13, 1895, they let and rented the premises to the respondent for the. term of one month, commencing June 1, 1895, and. by the month, and from month to month thereafter, either .party to the lease to.be at liberty to terminate it by a written'notice of such an intention to be given to the other at-least five days before the last day of any month. It was further alleged that the respondent entered into occupation of the premises under such lease; that the notice required in the case of. a monthly tenancy (Chap. 351, L. 1889) was duly given; that the petitioners had terminated the lease by service* upon the respondent of a written notice of their intention to such effect more than five days before the last day of April, 1896; and that the respondent continued in possession of the premises without the petitioners’ consent. I

The answer admitted the petitioners to be the landlords of the premises, and that the respondent was, and continued in possession. All other allegations of the petition were denied.

From documentary evidence, it appeared at the trial that Frank Lazarus, one of the petitioners, was the authorized agent of his co-petitioners to let the premises, to collect the rents thereof, and to prosecute any suit or proceeding to recover possession; and from record evidence, that on June 18, 1895, the petitioners had judgment, by final order, against the respondent, in proceedings to recover possession of the same premises for nonpayment of the rent accrued under a then existing lease, and that such lease was canceled by the issuance of a warrant, to enforce the judgment or final order, on the same day. Code Civ. Pro., § 2253. No question arises upon this- appeal with regard to the fact of service or ‘die sufficiency of the several notices alluded to in the petition.

To further substantiate the allegations of the petition, Nelson S. Spencer testified that he was the attorney for the petitioners in the proceedings last above alluded to, and that at or about the time of the recovery of such judgment or final order therein, he, in behalf of his clients, orally agreed with Edward A. Acker, the attorney for the respondent in the same proceedings, who assumed to act in that regard for his client, that the respondent should remain in possession of the premises under a letting upon the terms stated in the petition herein, at a monthly rental of $750, to be paid in advance, on the first day of each and every month. Mr. Spencer further testified that the terms of such oral agreement were reduced to writing in duplicate, one copy, signed by Frank Lazarus in behalf of himself and of his colandlords, having been delivered to Mr. Acker in exchange for the -other which was offered in evidence for the petitioners and excluded by the justice upon the respondent’s objection. From Mr. Lazarus’ testimony as a witness for the petitioners it appeared that the monthly rental at the rate mentioned in such oral agreement was regularly paid to him by the respondent down to and including the month of April, 1896.

On motion of the respondent’s counsel, when the petitioners rested, the trial justice dismissed the proceedings upon the ground that no lease as alleged in the petition had been established by the evidence..'

Upon this appeal counsel for the petitioners urges that the petition was not founded upon a written lease, and that, assuming Mr. Acker to have been without authority at the time and for the purposes of concluding the respondent by the oral agreement herein-' before, alluded to, a ratification- by the respondent, of such oral agreement, was apparent from the admissions in the petition and answer taken with, the facts in evidence. A sufficient answer thereto is that such was not the petitioners’ attitude iipon the trial, counsel for the petitioners then having, in response to the court’s query, disavowed any oral lease, and having further, throughout the trial, maintained that the lease mentioned in' the petition was in writing, and persistently offered the paper excluded as being the lease. Such attitude must be adhered to for the purposes of the appeal. Fay v. Muhlker, 1 Misc. Rep. 321, 323, and cases there collated; Bigelow on Estoppel, chap. XX, p. 518; 7 Am. & Eng. Ency. of Law, 22.

It remains to notice the exceptions taken to the justice’s exclusion of the paper offered for the petitioners as the lease;, and it ' is .not now necessary to discuss the admissibility of the paper as part of the res gestae in connection with an oral lease (Smith v. N. Y. Cent. R. R. Co., 4 Abb. Ct. App. Dec. 262), since, as already said, such a lease was disclaimed.

The paper excluded purported to have been executed by Morris J. Ludwig for, and to have been attested as subscribing witness' by Mr. Acker “as to Bernhard J. Ludwig,” the respondent; and upon scrutiny of the proceedings upon the trial we are unable to find that any attempt Was made to prove the execution of the paper byi Morris J. Ludwig, or that the latter had authority from the respondent to execute the paper in his behalf. For both or either. of such omissions,- therefore, the paper must be held to have been properly excluded. Obviously, the fact alone that Morris J. Ludwig was the respondent’s partner did not authorize the- former to conclude the latter by an agreement assumed to be in his behalf as an individual, and failing of proof of sufficient authority to conclude the respondent, a paper executed by Morris J. Ludwig, ostensibly for the respondent; was inadmissible in evidence against the latter. i

The case before us is not one where the instrument offered in evidence was produced from the custody of the party in possession of the property thereby affected, and who claims an interest under it. Jackson v. Kingsley, 17 Johns. 158.

The judgment, or order, appealed from is for a nonsuit and so does not bar another proceeding.

• Judgment or order appealed from affirmed, with costs.

McAdam, J., concurs.

Judgment or final order appealed from affirmed, with costs.  