
    Joseph Goodman, Respondent, v. Abraham Greenberg and Solomon Greenberg, Appellants.
    , (Supreme Court, Appellate Term,
    April, 1907.)
    Evidence — Documentary evidence — In general — Proof of. private instruments.
    Acknowledgment — Operation and effect—Effect on admissibility in evidence.
    A lease for a term of less than three years is not a “ conveyance ” within the meaning of section 935 of the Code of Civil Procedure making a conveyance, acknowledged or proved and certified in the manner prescribed by law to entitle it to be recorded in the county where it is offered, evidence without further proof thereof.
    Appeal by tenants from a final order of the Municipal Court of the city of Mew York, thirteenth district, borough of Manhattan, awarding possession of premises to the landlord.
    Louis Levene, for appellants.
    A] oss & Eeiner, for respondent.
   Erlanger, J.

On January 15, 1904, one Louis Goodman as landlord, by written lease, let unto one Michael Smith, as tenant, for the term of two and one half years, the premises which are the subject of this proceeding. The lease by its terms was to expire on December 31, 1906. On September 29, 1904, Goodman, by an instrument in writing, duly consented to an assignment of the lease to the appellants, who thereby agreed to assume all the terms and conditions imposed upon Smith with the same force and effect as if they had originally made said lease. Thereafter, and on October 3, 1904, the said Louis Goodman, died intestate, leaving him surviving his widow and seven children.

On January 4, 1907, the petitioner Joseph Goodman, describing himself as owner and landlord of an undivided one-seventh interest in the fee of said premises, brought this proceeding to oust appellants and their tenants from the premises, alleging that the term for which said premises were hired had expired.

On January 9, 1907, a final order was made awarding possession to said landlord, and from that order the tenants appeal.

Upon the trial it was admitted by appellants that Louis Goodman-died intestate on October 3, 1904, leaving him surviving as widow and children the persons mentioned in the petition, and that no general or testamentary guardian had been appointed for the infant children, and that the petitioner was authorized by the widow and adult children to maintain this proceeding.

Appellants also admitted that they entered into possession of the premises on September 29, .1904, and are now in occupation thereof.

Despondent offered in evidence the lease and assignment, which were admitted, and then rested. Appellants offered the same documents, which were again admitted and then it was attempted to introduce in evidence a copy of a paper writing, the original of which it was claimed was recorded in the register’s office oí this county on the 20th day of November, 1906, certified by the register, and which certificate recites that the annexed copy was compared with an instrument recorded on the day last named in the register’s office and was declared “to he a correct transcript therefrom, and of the whole of said instrument.” Objection to the admission of the paper was made on the ground that it was incompetent and that no proper foundation had been laid for its introduction. On this objection being made the court said: “ There is no foundation laid for its intro faction,” and the paper was marked “ Tenants’ Exhibit 0, for identification.” Under this ruling the paper was excluded. A verdict was thereupon directed in favor of respondent, and an exception noted. It is conceded by appellants that the only question involved on this appeal is the ruling made by the trial justice in excluding the paper writing referred to. Bo attempt was made to prove that Louis Goodman in his lifetime ever executed or delivered such a paper, nor was the original produced, or its loss accounted for so as to admit a copy as secondary evidence. We have been referred to no authority which under the circumstances made the paper competent. But it is asserted that, as the instrument was properly certified by the register of this county, it was receivable in evidence with like force and effect as the original, and that no proof was required in respect of its execution or effectiveness as original evidence; and section 935 of the Code is relied upon to sustain the claim. That section is as follows: “ A conveyance, acknowledged or proved, and certified in the manner prescribed by law, to entitle it to be recorded in the county where it is offered, is evidence, without further proof thereof. Except as otherwise specially prescribed by law, the record of a conveyance, duly recorded, within the State, or a transcript thereof, duly certified, is evidence, with like effect as the original conveyance.” The question then is, what is meant by the term conveyance, and the answer thereto may be readily found in the statutes. Section 240 of the Beal Property Law, provides that “ The term ' conveyance J includes every written instrument, by which any estate or interest in real property is created, transferred, mortgaged or assigned, or by which the title to any real property may be affected, including an instrument in execution of a power, and although the power be one of revocation' only; except a will, a lease for a term not exceeding three years, an executory contract for the sale or purchase of lands, and an instrument containing a power to convey real property as the agent or attorney for the owner of such property.” If, therefore, a lease for three years is not within the purview of the act, it would seem to follow that a lease for a shorter period is also excluded. 9 Gyc. 860, 862.

The final order must be affirmed, with costs.

Gilderslebve and Giegerich, JJ., concur.

Final order affirmed, with costs.  