
    J. Romaine Brown, App’lt, v. John Sullivan, Respt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 7, 1892.)
    
    Summary proceedings—Proof of relation of landlord and tenant.
    In summary proceedings to remove a tenant, plaintiff, after proof that the president of his grantor, who signed, and the witness to an alleged lease had died, and of the genuineness of their signatures, introduced in evidence the lease of the premises in question, which apparently had been signed by defendant by lus mark. Defendant admitted that he had been and was in possession, but did not know who the owner was, denied that he had signed the lease, or authorized any one to sign for him, and disclaimed all knowledge of the same. Reid, that in view of all the circumstances, the weight of evidence was in favor of the genuineness of the lease, and of the existence of the relation of landlord and tenant between the parties.
    Appeal from an order of the district court in the city of ¡New York, for the tenth judicial district, dismissing the alleged landlord’s petition in summary proceedings to recover possession of lands after the expiration of the term for which they were claimed to have been demised, instituted pursuant to the provisions of §§ 2231, etc., of the Code of Civil Procedure.
    
      Edwin B. Smith, for app’lt; Breen & Cohalan, for resp’t.
   Bischoff, J.

To sustain the jurisdiction of the court below, as well as his right to recover, it was incumbent upon appellant to prove the relation by agreement of landlord and tenant between respondent and himself, or his predecessors in title or possession, Benjamin v. Benjamin, 5 N. Y., 386; People ex rel. Mitchell v. Simpson, 28 id., 55, and in this behalf, after having first established the fact of the death of Ford, the subscribing witness, and of Graham, whilom president of the Metropolitan Insurance Company, one of the parties thereto, some years before the commencement of these proceedings, together with the genuineness of their several signatures, appellant was permitted to introduce in evidence the following instrument:

“ The Metropolitan Ins. Co. lets, and John Sullivan hires and takes, the cottage and eleven lots, more or less, in the village of Mount Hope, Westchester county, now in his occupation, at the rent of five dollars per month, tenancy to be from month to month, with right, to the Metropolitan Ins. Co. to terminate the tenancy at any time on one month’s notice to the occupant in writing.

“Mount Hope, March 15,1873.
“(Signed) John X Sullivan, Metropolitan Ins. Co.
“ R M. C. Graham, Prest.,
108 Broadway, New York.
“ In presence of
“Henry B. Ford, Deputy Sheriff.”

No question can arise as to the sufficiency of the proof of its due execution. Borst v. Empie, 5 N. Y., 36 ; Jackson v. Burton, 11 Johns., 64. The instrument thereupon became evidence of the facts therein recited, Greenleaf on Evidence, vol. 1, § 572 ; Allaire v. Allaire, 37 N. J. L., 325, and, the names being idem sonans, that respondent, who was at the time in possession of the lands therein mentioned, executed it. Hatcher v. Rochelean, 18 N. Y., 86; People v. Smith; 45 id., 773; Daby v. Ericsson, id., 786 ; Agate v. Richards, 5 Bosw., 456; Jackson v. Orser, 2 Hilt., 99 ; Lyon v. Brown, 6 Alb. Law J., 161. The relation of landlord and tenant by agreement between the Metropolitan Insurance Company, appellant’s grantor,' and respondent, was thus, at least prima facie, established, and from thenceforth it rested with respondent to disprove it.

Respondent admitted that at the time the instrument purports to be dated he was, and has since continued in possession ; that he is illiterate and unable to read or write ; that he is not now, and never was the owner of the lands in the instrument described, and does not know to whom they belong, and that he has never paid any person for their use and occupation by him ; but he denied that he, or any one with his knowledge or authority, affixed his mark to the instrument, and upon the latter being exhibited to him, disclaimed all previous knowledge of it. Here then ensued a conflict of evidence which was determinable only by the test of preponderance in favor of one or the other of the contending parties. The trial justice appears to have found the fact of preponderance in favor of respondent and dismissed the proceedings ; and our inquiry on this appeal is concerning the validity of that conclusion.

That it is our province to review the evidence on appeals from district courts, and to reverse if the judgment rendered is against the weight of the evidence adduced on the trial, admits of no dispute, Schnitzer v. Adelson, 8 Daly, 269 ; Curley v. Tomlinson, 5 id., 283 ; Phillips v. Munsey, 22 St. Rep., 226 ; Stone v. Thaden, 32 id., 296, and in the consideration of the weight of evidence due regard must be had for its kind and quality, the degree of credibility to which the testimony of witnesses is entitled, and the apparent probability or improbability of its truthfulness.

The conceded fact that respondent was in possession of the lands at the time of the date of the instrument in evidence, and Las so continued, dispels any doubt concerning his identity with the person of the same name by whom the instrument purports to have been executed; no one can remember that which has never taken place, but may forget an occurrence, and the positive character of the evidence adduced in support of the existence of the relation of landlord and tenant between the parties to the instrument, therefore," entitles it to greater weight than should be attributed to respondent’s denial of its due execution by him, the latter being evidence of purely negative character, depending upon the accuracy of his memory, its common degree of frailty being intensified by his illiteracy, and the fact that his alleged signature consists only of a cross or mark, which does not possess the distinguishing characteristics accompanying ordinary signatures, and is, therefore, incapable of identification and aid to recollection. Rice on Evidence, vol. 2, p. 797; Stitt v. Huidekoper et al., 17 Wall, 385 ; 84 U. S., 645; Bradley v. Mutual Ben. L. Ins. Co., 45 N. Y., 422. Further, respondent’s denial was fraught with motives of self interest, and subject to discredit on that account, though, not otherwise impeached, Elwood v. Western Union Tel. Co., 45 N. Y., 549; McNulty v. Hurd, 86 id., 547; Canajoharie Nat. Bank v. Diefendorf, 123 id., 191; 33 St. Rep., 389, while the genuineness of his signature is supported by the presumption of innocence of the perpetration of a criminal act by Ford, the subscribing witness, and Graham, whilom president of the Metropolitan Insurance Company, and the utter absence of any apparent motive for 'them, or either of them, to resort to a forgery of respondent’s name from which neither could have expected to derive any advantage.

Testing the evidence, observing the foregoing considerations, the conclusion is irresistible that respondent, when he denied his execution of the instrument in evidence, either had forgotten the fact, or, recollecting it, that he resorted to falsehood to avoid its effect.

The order appealed from should be reversed, and a new trial ordered, with costs to abide the event

Giegerich, J., concurs.  