Opinion
June, 1895.
George W. McAdam, for appellant.
Charles A. Flammer, for respondent.
In a summary proceeding for the dispossession of a delinquent tenant it appears that the pursuer held the demised premises as guardian in socage for her infant children, and that she leased them in her own name and as of her own right. The proceeding is prosecuted by her as guardian for the infant owners.
For affirmative defense it was pleaded and proved that she was indebted to the tenant, individually, in a sum exceeding the amount of the unpaid rent. Judgment went against the tenant.
It is argued for the appellant that since the lease was by Essie M. Gallagher in her own right, and the petition is by her as general guardian of her infant children, the conventional relation of landlord and tenant does not subsist between the parties to the proceeding. But upon the evidence the mother was guardian in socage of her infant children, and it appears that before the commencement of the proceeding she was duly appointed their general guardian.
Whether as guardian in socage, or general guardian, she had custody of the infants' real estate, was entitled to receive its rents and profits, might lease it and recover the rent in her own name, and might maintain trespass or ejectment in respect of her wards' land. Field v. Schieffelin, 7 Johns. Ch. 150; Holmes v. Seely, 17 Wend. 78; Pond v. Curtiss, 7 id. 45; Thacker v. Henderson, 63 Barb. 271, 277, 278; Matter of Hynes, 105 N.Y. 560, 563; Byrne v. Van Hoesen, 5 Johns. 65. Such being the relation of the respondent to the demised premises, she had a right to lease them in her own name and to maintain a summary proceeding for recovery of their possession. Sylvester v. Ralston, 31 Barb. 286. Though the premises be the property of her wards, in legal effect she is the landlord. Indeed, the tenant is estopped to dispute her title.
This being so, it is contended that the debt against Essie M. Gallagher in favor of the tenant is a legal counterclaim in bar of the proceeding. Code Civ. Proc. § 2244, as amended in 1893. But by subdivision 3, section 502 of the Code, "If the plaintiff is a trustee for another, or if the action is in the name of a plaintiff who has no actual interest in the contract on which it is founded, a demand against the plaintiff shall not be allowed as a counterclaim." The respondent prosecutes as guardian, i.e., as trustee for her wards, and since she owes the debt in her own proper capacity, it is not available against her claim in the capacity of guardian.
The judgment is affirmed, with costs.
BOOKSTAVER and BISCHOFF, JJ., concur.
Judgment affirmed, with costs.