
    Albert J. Adams, Appellant, v. Jacob Doelger et al., Respondents.
    (New York Common Pleas—Additional General Term,
    December, 1895.)
    1. Lease—Signed only by lessor invalid without acceptance.
    A lease for a term of years which is signed only by the lessor is no.t valid unless there has been an acceptance or ratification by the lessee-. 3. Same.
    Where it was- intended, that the lease should be sighed by both parties, but the lessee refused.' to do so- because it was not made out. tq. the right parties, and no occupation was taken thereunder, the mere fact that the lessee’s clerk gave a check for a month’s rent will not amount to a ratification.
    Appeal, from, a, judgment rendered-in the Disjunct <3©,urt;.Qf the city of ffew York for the seventh judicial district.
    
      Francis V. S. Oliver, for appellant.
    
      Moses Weinman, for respondents.
   Bookstaver, J.

This action was brought to recover one month’s rent of the premises No. 11 James Slip in this city, Which the plaintiff claimed to have leased to 'the defendants for a period of five years from January 1,1895'. The answer was a general denial and a plea of the Statute of Frauds. On the trial the plaintiff offered in evidence a paper purporting to be a lease for the term of five years from January 1, 1895, at an annual rent of $1,500, which was signed by-himself only, and not by the defendants.; and the defendants claimed, that this instrument was void because not executed by them.

Although 2 Revised Statutes, 135, sections 6, 8, seem to require an instrument conveying land or creating a lease of the same for a period exceeding one year to be signed by the grantor or lessor only, in order to make it valid, yet McAdam in his Landlord and Tenant, page 555, states the broad principle that if a lease be subscribed by the lessee and not by the lessor, or vice versa, it does not satisfy the requirements of the statute (citing several authorities). An examination of these authorities shows that, however clear they may be as to the first part of the proposition, they are not very convincing as to the second. But the statement seems to be sustained by Whitford v. Laidler, 94 N. Y. 145, where it was held that a lease signed by the lessor and some of the officers of a farmers’ club, as lessees, but not by all of them, was* void. In. 12 American and English Encyclopaedia of Law, page 986, it is stated that one of the essentials to a complete lease is the signatures of the parties thereto, or such a ratification as would in law amount to a signature, and in support of this proposition cites Clemens v. Broomfield, 19 Mo. 118 ; Wade v. City of Newbern, 77 N. C. 460; Harrison v. Parmer, 76 Ala. 157; Waller v. Dean, Owen, 136 ; Kelsey v. Tourtelotte, 59 Penn. St. 184. On the other hand, the courts of Illinois, New Hampshire, Nevada and Maine (McFarlane v. Williams, 107 Ill. 33; Fitton v. Hamilton City, 6 Nev. 196; Worster v, Great Falls Manfg. Co., 41 N. H. 18 ; Libbey v. Staples, 39 Maine, 166) have decided that it is not necessary for a lessee to execute a lease in order to make it a valid instrument. But in all-.Jhdge latter class of cases it will be: found' on examination th^t ,-im; order to make such an instrument bindtring the lessee .must have entered upon the . demised premises under the lease, ' ór unqualifiedly accepted -or .ratified the same. At common law such leases were made effectual by livery of seizin, as in the case of a deed. * In this ease there is no evidence whatever that the lessees had pqs: session of the premises in controversy for a" single hour. There is some vague testimony as to their having the keys at one time, but this scarcely amounts to the dignity of evidence;.

-Mor do we think there is any conclusive; evidence of accept- - anee or "ratification. On this point the plaintiff relies chiefly •Upon the fact that the lease, when executed by the plaintiffj "was delivered to the defendants, who kept the same- and after-wayds gave a check . for one month’s rent and the amount ^required for the" transfer of the license to .them, and gave, a ireceipt therefor. But at the time this was done one of the -defendants expressly stated to plaintiff’s agent that he could mot sign the lease uhtil his brother came, and would hot sign fit. The check was given by the bookkeeper of the defendants. The evidence in regard to the transaction is extremely "vague and -confused, plaintiff’s witnesses making different -statements as to important features of it. We gather, how-ever, that one Augustus Mayer and the attorney for the plaintiff had a conversation in regard to the former leasing a place in which to start the liquor-business. When the attorney • called Mayer’s attention to the premises in question he made " inquiries aS to the terms on which the place could be procured, the character of.the place, etc., etc. Afterwards Mayer had an interview with the agent of the plaintiff, not yet having . seen the premises in question, when he told the agent to draw up a lease for five years for Jacob Doelger. This lease was handed to the defendants, or one of them, and was returned ; as not being made out to the right parties. Another lease was afterwards drawn up and handed to one of the defendants, but all of plaintiff’s witnesses testified that at that time ther'e was .nothing ‘Said as to accepting or rejecting the lease, or in fact in regard to it. - A careful reading of the testimony convinces us that Mayer was to be the party to be put in possession of the premises and to have charge thereof, and that the • defendants were to assist him in starting the place in -various ways, and that they did not contemplate themselves being the lessees of the place. And when Mayer discovered, after the delivery of the paper to the defendants, that the premises had been used, as a disorderly resort; and that a license for-the same had been revoked by the board of excise on that ground, neither he nor the defendants would have anything further to dowith it. One thing is clear from the evidence, and that is that both "the plaintiff and the defendants, at the time the paper was delivered to the latter, contemplated that it should be executed'by both parties. This was not done by the defendants Lor the reasons above stated, and, therefore, did not become •operative. Brackett v. Barney, 28 N. Y. 333; Whitford v. Laidler, supra. The giving of the check and the receiving of the receipt under the circumstances appearing in the return did not amount to an acceptance or ratification of the lease •and cannot be considered as an execution of that instrument.

We, therefore, think" that the justice who tried the ca§e was :fully justified in arriving at the conclusion he did, and that the judgment should be affirmed, with costs to the respondent.

Bischoff, J., concurs.

Judgment affirmed, with costs.  