131 N.Y.S. 436 | N.Y. App. Div. | 1911
This appeal is from a determination of the Appellate Term, affirming a judgment of the City Court entered upon the verdict of. a jury in favor of defendant, after a second trial of the cause, a verdict directed for the plaintiff upon a prior trial
Under the conditions stated we cannot see how this judgment in favor of the defendant can be sustained. Even accepting defendant’s version of the conversation with Ward as correct, there was absolutely no consideration for- the promise upon Ward’s part to either accept a new tenant or discharge the defendant.- The defendant was primarily liable to Ward upon the written lease and Ward never executed'a written release or discharge. Defendant relies upon the fact that thfe oral agreement alleged was subsequently executed, so that by operation of law the release became effective. But the difficulty is that there is no proof whatever that Mgey did, in fact, become the tenant of Ward. Assuming that he paid, rent to Ward which was accepted, that might as well have been paid on defendant’s account as on account of Mgey; and, further, as. the unexpired term of the lease under seal was more than one year — being, in fact, the full term of five years —the mere receipt of rent from another person would not terminate the lease. (Wilson v. Lester, 64 Barb. 431.)
Moreover, as far as the record discloses, Nigey never did in fact become in any way obligated to Wardfor the rent of these premises. He did not in writing assume the lease nor did he ever promise to pay the rent accruing thereunder. A tenant cannot impose a new tenant upon his landlord, simply by assigning his lease. Defendant’s contention would lead to the improbable result that Ward, without any consideration, had released him, a responsible person, from a lease having five years still to run, and consented to a new tenant taking possession, of unknown financial standing, who was never under obligation to pay any rent, whatever toWard, except for such period of time as he might choose to actually occupy the premises.
We are of the opinion that upon this record there is an absolute failure of proof that there ever was a valid release by the lessor of defendant as tenant and the substitution of a new tenant in his place with the landlord’s consent.
The determination and order of the Appellate Term and the judgment and order of' the City Court -herein must, therefore,
Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.
Determination appealed from and judgment and order of City Court reversed and new trial ordered, with costs in this court and in the courts below to appellant to abide event.