
    Jetter Brewing Company, Plaintiff, v. Clara Kurzel and Others, Defendants.
    (Supreme Court, Kings Special Term,
    May, 1908.)
    Estoppel — Equitable estoppel and estoppel in pais — Facts creating estoppels — Clothing another with title or right — Investing tenant with possession of lease claimed to be escrow.
    Where a tenant is in possession of premises and there is a lease to her in writing, under seal, duly recorded, having more than three years to run at the time she executes a mortgage thereof, the landlords will not be permitted to claim as against the mortgagee that at the time of the mortgage the tenant was in possession under a subsequent oral lease and that the lease in writing had never been delivered but only placed in escrow upon conditions which the tenant had failed to perform.
    Action for the foreclosure of a mortgage.
    Katz & Sommerich, for plaintiff.
    J. Bohmbach, for defendants.
   Kelly, J.

When Mrs. Kurzel executed the mortgage covering her leasehold, November, 1906, she was in possession of the demised premises conducting a saloon business, openly and notoriously, with the liquor tax certificate in her name. The defendants Nieder stein had executed a lease in writing under seal, dated August 29, 1906, demising the premises to her for the term of three years and eight months, commencing September 1, 1906, and ending May 1, 1910, at the yearly rental of $1,800, payable monthly in advance. This lease was recorded in the register’s office on September 21, 1906, two months before the mortgage was made. The lessors, owners of the property, sought to introduce evidence that the lease was delivered to some person in escrow, to hold until Mrs. Kurzel procured the removal of a fruit stand from the front of the premises; that she did not comply with this condition, therefore, they claimed there was no delivery. The owners claim that, on November 1, 1906, there was some verbal or oral lease from them to Mrs. Kurzel, and that she held under that oral lease. They recognized her as tenant because they dispossessed her in September, 1907, signing a petition, in which they said she was tenant under lease of November, 1907; and they procured a surrender of that lease. I refused to receive evidence as to the conditional delivery of the written lease, for the reason that there was no charge that the plaintiff knew anything about it. The allegation in the answer was failure to perform a condition subsequent and I held that, the tenant being in open possession and the lease on record, the landlords were estopped from disputing it as against plaintiff acting in good faith. That this is the only proper disposition of the case in the end must be apparent. The learned counsel for the landlords insists that I should have received the evidence showing conditional delivery, and that its exclusion was error; but I still think the evidence was inadmissible on the facts here. It is proper to show that an instrument in writing was not delivered; but, where the tenant is let into possession and the lease placed on record, the landlord has either voluntarily or by negligence, for which the plaintiff is not responsible, clothed the tenant with all the indicia of tenancy under the sealed instrument and he should not he allowed to dispute it. The condition was a condition subsequent in any event.

Judgment for plaintiff, with costs.  