Peter Goelet et al., Respondents, v. Paul N. Spofford et al., Appellants

Peter Goelet et al., Respondents, v. Paul N. Spofford et al., Appellants. (Argued November 18, 1873; decided December 9, 1873.) A judgment roll is not void because not signed by the clerk of the court. Such signature is not expressly required by the Code, and the provisions of the Bevised Statutes in reference to judgment records are inapplicable. This was an action to recover rent of certain premises in the city of Hew York, leased by plaintiffs to defendants. The lease was for a term of twenty-one years from May 1, 1867. It contained a clause authorizing the lessees to surrender the same at any time previous to February 1st, 1868, provided that they pay the rent to May 1st, 1868; the surrender to be executed under seal, and to be acknowledged. The defendants notified the plaintiffs in January, 1868, that they intended to surrender, as authorized by the lease. Plaintiffs prepared a form of surrender for defendants to execute. It contained a clause stating the payment of rent up to the first of May. This, defendants struck out, claiming they were not obliged to pay the rent in advance, but only as required by the lease. The surrender, as changed, was executed, but not acknowledged. Plaintiffs declined to receive it. The time of the surrender was extended by agreement to February 22,1868. Another form of surrender was executed and acknowledged, but the acknowledgment was defective. This was tendered to plaintiffs’ counsel March 4th, 1868, who refused to receive it, because of the defective acknowledgment, and also because the form was, as he' alleged, incorrect. It was reacknowledged and again tendered on the twenty-third March, and again refused, because not in proper form, and because the time had expired. Defendants did not offer to pay the rent to May 1st, 1868. This action was brought for a quarter’s rent accruing after May 1st, 1868. The referee found that time was a material part of the contract, as real estate in Hew York is usually rented about February first, lease to take effect May first. The referee also found that no valid surrender was made or tendered, and that plaintiffs were entitled to recover. Held, no error; that plaintiffs had a legal right to decline to accept a surrender after February twenty-second, also that the payment of the rent up to the first May was required to be made at the time of the surrender; that the extension of time was not a waiver of the conditions, save in giving the additional time to complete the surrender.- Upon the trial, a certified copy of a judgment roll in a former action between the parties for a prior installment of rent was offered in evidence by plaintiffs, etc. It was objected to upon the ground that, it appearing thereby that the original was not signed by the clerk of the court, it was not a valid judgment-roll. The objection was overruled. (2 R. S., 373, § 11.) Held, no error; that by the Code, prescribing what should constitute the judgment roll (Code, § 281), it was not expressly required that the roll should be signed by the clerk; and that the provision of the Revised Statutes did not apply. Dexter A. Hawlcins for the appellants. Oha/rles Jones for the respondents. [MAJORITY — Church, Ch. J.,] Church, Ch. J., reads for affirmance. All concur. Judgment affirmed.