Schenkberg v. Treadwell

This judgment should be affirmed, with costs. See Bartholomae et al., Ex’rs, v. Kaufman, 47 N. Y. Super. Ct. 552, affirmed in 91 N. Y. 654 (see, for opinion, 16 N. Y. Wkly. Dig. 127); Thistle v. Jones, 45 Misc. Rep. 215, 92 N. Y. Supp. 113; Nelligan v. Campbell, 47 N. Y. St. Rep. 576, 20 N. Y. Supp. 234; Dickson’s Ex’r v. Thomas, 97 Pa. 286; Behrens v Insurance Co., 64 Iowa, 22, 19 N. W. 838.

8Judgment affirmed, with costs.

(dissenting). The plaintiff sought and recovered' judgment against the defendants herein for rent alleged to be due *419under a lease, under seal, made by her to the New Science Sanatorium League, and subscribed “The New Science Sanatorium League, by La Forest Po.tter, M. D., President. George A. Tread-well, Vice President. Eliza M. Schenkberg.” It is the law in this state that, “where an instrument is under seal, no person can sue or be sued to enforce the covenants therein contained, except those who are named as parties to the instrument, and who signed and sealed'the same.” Henricus v. Englert, 137 N. Y. 488, 494, 33 N. E. 550. The defendants are not named as parties to the lease, nor did they sign in individual capacities, and, though their principal was nonexisting, the seal may not be treated as surplusage in order to charge them, as that would change it from a specialty to a simple contract. Briggs v. Partridge, 64 N. Y. 357, 21 Am. Rep. 617. Liable they may be for a breach of an implied warranty of authority, or mayhap for fraud and deceit, but their liability may not be founded upon the instrument introduced in evidence, and upon which recovery was sought and obtained herein.

Judgment should be reversed, and new trial ordered, with costs to appellant to abide the event.