Carter v. Hammett, 18 Barb. 608

Carter v. Hammett

18 Barb. 608 | N.Y. Sup. Ct. | 1854

By the Court, Roosevelt, J.

This is an action for rent, brought, not against the original lessees, but against parties put into possession by them. The defendants allege that prior to the commencement of the quarter now sued for, they had transferred .their interest and possession to one Seeley. And the question is, did Seeley enter and occupy the premises as the defendant’s sub-tenant, to pay rent to them, or as the defendant’s assignee, to pay rent to the original landlords ?

*611Where a person goes into possession as an assignee of a lease, and holds himself out to the landlord as such, he is estopped from denying the assignment, or objecting that the assignment was not in writing. This point was decided, and, I think correctly, by a former general term in this same case. (12 Barb. 253.) While the assignee of a lease, whether' by parol or in writing, remains in possession, either by himself or by his sub-tenants— tenants admitted by an^. paying rent to him as landlord—he is liable to the original landlord, in precisely the same manner as if he had remained personally in possession. The possession of his tenant is his possession.

Was Seeley, then, at the time in question, an under-tenant of the defendants ; or was he a second and substituted assignee, and thereby the tenant not of his assignors but of the plaintiffs, the original landlords 1 The plaintiffs, it appears, as the original landlords, had received rent directly from Seeley, for the three quarters immediately preceding the one in suit. They received the rent according to, and seemingly under, the original lease ; and ordinarily, therefore, they would be estopped from denying that Seeley was their tenant and not the tenant of the defendants. Seeley-, however, it seems, at-first refused to recognize the plaintiffs as his landlords, although they called on him for the rent; saying “ he did not know them in the matter, and would not pay the rent to them, unless they procured (which they did) an order from the defendants.” Do these orders, then, thus given by the defendants, merely to obviate scruples and remove difficulties, change the legal consequences of the demand by the plaintiffs on Seeley, and their acceptance from Seeley of the rent 1 It seems to me they do not. Having then recognized Seeley as the person responsible, and accepted him as their tenant, they cannot afterwards turn around and sue Seeley’s assignors. The only liability of the assignors, at any time, was the result of their possession, and was limited in its duration by the operation of that possession. And the same cause which, while it lasted, made them liable, namely possession, on its cessation, transferred the liability to Seeley who succeeded to the possession. The rule in such cases is, and it is founded on the prin*612ciples of justice and implied contracts, that each successive party, other than the original lessee, is liable only by reason of and for the term of his own possession. Possession is both the foundation and the boundary of the liability. For the quarter in dispute Seeley was in possession, and the defendants were not. Seeley, therefore, was the person to be sued for the rent of that quarter, and not the defendants.

[New-York General Term, November 6, 1854.

Judgment of affirmance, with costs^

Mitchell, Roosevelt and Clerke, Justices.]