
    In the Matter of the Application of John A. Stafford, General Guardian of Edward Mahon, an Infant, for leave to lease Real Estate.
    
      (New York Common Pleas, General Term,
    
    
      Filed March 14, 1893.)
    
    1. Infants — Proceeding to lease real estate — Parties.
    There is no impropriety in making any relative of the infant a party when the proceeding to lease its real estate is instituted by guardian.
    2. Same — Appeal.
    An order requiring that notice be given to such relative of the hearing before the referee confers upon him the right to appear, to except to the report and to appeal.
    3. Same — Lease—Avoidance.
    A lease given by a general guardian is voidable by his successor.
    4. Same.
    Though the general guardian may avoid such lease by instituting a proceeding to authorize the giving of a new lease, he may reinstate it by acquiescing in the judicial decision that it is not.avoided.
    5. Same — Sale of liquor.
    The court will not direct the guardian, against his objection, to make a lease for saloon purposes in order to obtain a higher rent. As such lease would involve him in personal responsibility under the civil damage act, the guardian must be left to the exercise of his discretion as to the tenants.
    6. Same.
    Where it appears that the old lease reserved a rental less than the present rental value of the premises, and that the assignee of the lease had agreed with his assignor to pay the present rental value,, the final order should allow the guardian to make a new lease with the assignee at the increased rental.
    Appeal by Edward J. Gfonoude from an order of the special term confirming the report of the referee.
    
      Guggenheimer & Untermyer (M. Weinman, of counsel), for app’lt; Matthew Daly, for Patrick O’Brien, lessee, resp’t.
   Daly, Ch. J.

The order confirming the report of the referee, in which he finds that the lease executed by the former general guardian of the infant is in force and that no sufficient reason exists for ordering a new lease to be made, has been acquiesced in by the present general guardian who instituted these proceedings, and the only appeal therefrom is taken by a person who is said to be an uncle of the infant, but who - has no interest whatever in the matter except such as may be assumed from the family relation, and would seem to be sufficiently protected by the general guardian.

Question is made as to the right of a relative of the infant to be made a party to a proceeding taken by the guardian to lease the infant’s real estate, and to his right to question by appeal the discretion of the guardian, or the court, in making disposition of the proceeding; but I apprehend that no harm can result from admitting such a person as a party to the proceeding; that on-the contrary it affords the court additional means of information by which to arrive at a proper conclusion. The proceeding for the leasing of an infant’s real estate could be instituted by “ any relation ” of the infant, Code Civ. Pro., § 2349, and so there is no impropriety in making any relation a party when it is instituted by guardian.

In this case the appellant Gfonoude was in effect made a party to the proceeding by the special order, not appealed from, requiring that notice be given to him of the hearing before the referee .and that he be heard. This unquestionably conferred the right to appear, to except to the report and to appeal, or it would be ineffectual.

Assuming, then, the right of the appellant, in the interest of the infant, to assail the cor,rrectness of the referee’s decision, and the order confirming it, we are to inquire if they injuriously affect the interests of the infant ? The sole question is whether the general guardian shall take the premises from one party who has hired them for a liquor store and is willing to pay $1,400 per annum, and give them to another party to use for the same business at .$1,800 per annum. At the outset it must be premised that the general guardian is dealing with a lease made by his predecessor, the mother of the infant, who was his general guardian, and is now deceased, and who executed to one Cunningham, on November 10,1891, a lease to commence May 4, 1891, for five years, at $1,200 per annum, with a covenant for a five years renewal at $1,400. This lease was subsequently assigned by Cunningham to one Keane, who assigned it to O’Brien, and the latter swears that he has agreed to pay $1,400 per annum for the first term, and $1,500 for the renewal term; an increase of the rent originally reserved. When this lease was executed there was an outstanding lease of the premises executed by the father of the infant, the then owner of the premises, at the rental of $100 per month, which lease did not expire until March 30, 1892.

The present general guardian had the power to disaffirm the lease made by the preceding guardian and to make a new lease ; for a guardian may lease for a time as long as he continues guardian, or for any number of years within the minority of the infant, subject to being defeated by another guardian being appointed pursuant to the statute. Such lease is voidable by the new guardian. Emerson v. Spicer, 46 N. Y., 594.

It is claimed by appellant that the court was bound to make an order for a new lease because the present guardian has avoided the prior lease by the institution of these proceedings. The referee holds otherwise, and the general guardian acquiesces in that determination. This acquiesence leaves the tenants under the old lease in possession, and the question whether there has been a disaffirmance or not is of no consequence.

Though the general guardian may avoid the lease by instituting the proceeding, he may reinstate it by acquiescing in the judicial decision that it is not avoided ; a decision which binds all parties. If this were not so, any decision of the court upon such a proceeding as the present, except a decision for a new lease, would be wholly nugatory, and to institute the proceeding would require the court, as matter of course, to grant it. But the statute intended, when it provided for an application to the court by the guardian or other party interested, a submission of the questions involved to the sound discretion of the court; otherwise the proceeding would be an idle form. Equitable Life Ins. Soc. v. Stevens, 63 N Y., 341.

As the confirmation of the report that the last lease is in full force and effect binds the guardian during its continuance, the question is whether the rights of the infant have been prejudiced thereby. It is undoubtedly the fact that responsible parties offered $1,800, a larger rent for the premises than the lessees are required to pay. These parties desired to carry on the business of selling liquor. Ho higher rent than $1,400 can be obtained for the property for any other business, so far as appears. Must the court then direct a guardian to make a lease to the parties offering the greater rent for the purpose named ? It is clear that the court is not bound to do so, and further, that the court could not force the guardian to do so by any order it might make. To lease the premises for the sale of liquor involves the guardian in personal responsibility under the civil damage act, and this responsibility cannot be forced upon him by any order of the court. As he is personally liable, he must be left to the exercise of his discretion as to the tenants to whom he will entrust the premises. If, upon his accounting, there should be evidence of bad faith, resulting in loss of rental, he will be answerable; but the court ' will not direct in advance, against his objection, the making of a lease for saloon purposes in order to obtain a higher rent from the premises.

There is, however, a matter which is left in a doubtful shape by the order as it stands. The lease which is declared to be in force reserves only $1,200 annual rent for the term, and $1,400 per annum for the renewal. The referee has found that $1,400 per annum is now the fair rental value of the premises, and the assignee of the lease admitted on the reference that he had agreed with his assignor to pay that amount annually for the term and $1,500 per annum for the renewal term; but no agreement to that effect was produced, and the confirmation of the report as it stands seems to approve of the lease as originally made, although it is for a less rental than is found to be reasonable.

The lease as approved by the referee and the court was not a lease for the rental originally reserved, but was in effect a new agreement for a larger rental. This was, therefore, a new lease, and was what the petitioner asked to be allowed to make, and the final order of the court should have granted his petition and allowed him to make a new lease with the assignee of the outstanding one at the increased rental which the referee found to be reasonable, and which the assignee was willing to pay.

The final order appealed from should be modified by insertin'* a direction as above suggested.

No costs of this appeal to either party.

Bisohoff and Pryor, JJ., concur.  