Ernst v. Crosby

• Decision Date: 12 December 1893
• Citation: 35 N.E. 603,140 N.Y. 364
• Parties: ERNST v. CROSBY.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 364

35 N.E. 603

ERNST

v.CROSBY.

Court of Appeals of New York.

Dec. 12, 1893.

Appeal from supreme court, general term, first department.

Action by Robert Ernst against Darius G. Crosby, as executor of John Mowatt, deceased, for rent accruing under a lease. From a judgment of the general term (21 N. Y. Supp. 365) affirming a judgment for defendant entered on the report of a referee, plaintiff appeals. Affirmed.

E. B. & W. J. Amend,(E. J. Spink, of counsel,) for appellant.

Fettretch, Silkman & Seybel,(Theodore H. Silkman, of counsel,) for respondent.

GRAY, J.

As a defense to the claim for rent against the estate in his hands the executor asserted the invalidity of the lease, for having been made by the lessor for an unlawful purpose.The evidence showed that the house had been used and occupied by the Clarks for purposes of prostitution. Mowatt, the defendant's testator, had, probably, been the lessee of the premises under a lease from the original owner, McGinn. It is true that the evidence does not absolutely show this, but it is sufficient to justify the inference of the fact, and of the further fact that Mowatt sustained close relations with the Clarks. McGinn sold to Morris, and the conveyance was made subject to the lease of the premises, but without mentioning the name of the lessee. Morris, before his purchase, lived near to and frequented the house, and knew perfectly well the nature of the use to which it was put by the Clarks. The existing lease was to expire a few days after the date fixed for Morris to take title under his contract of purchase. Mrs. Clark testified that Morris had promised to give them a new lease, and had negotiated with respect to it. She went to his lawyer's office, as she says, by his direction, for the purpose of getting the new lease, but, though one was drawn up at first to her and her husband, it was subsequently destroyed. Morris refused to give the lease to them, and executed one to Mowatt, which provided that the premises should be ‘used as a dwelling house only,’ and that the lessee should ‘obey all lawful orders of the health department and all other departments of city government.’ It does not appear affirmatively that Morris saw the lease existing at the time of his purchase, or knew that Mowatt was the lessee therein. There was abundant evidence to show his familiarity with the leased premises, his relations with the tenants, and his knowledge concerning the inmates of the house and its uses; and from his connection with Flanagan, who formerly collected the rent for the lessee, and from the testimony of his lawyer, it is difficult to resist the inference that he knew enough about Mowatt. After owning the premises for some months, he sold them to the...