135 N.Y.S. 659 | N.Y. App. Term. | 1912
Lead Opinion
The plaintiff sues for rent alleged to be due under a lease made on the 27th day of February, 1905, and extended for a term of five years from the 1st day of February, 1907, wherein the defendant agreed to pay the annual rental of $7,100 in equal monthly installments. There is no dispute hut that the rent is unpaid, and the sole defense sought to he established is, that the defendant obtained the consent of the landlord to assign the lease, and that the landlord agreed to accept the assignee as tenant in place of the defendant and release the defendant as tenant of the demised premises, and that, thereafter, the assignee entered into .possession of the premises, and the landlord accepted the assignee as tenant of the said premises. In other words, the defendant "claims that the lease to him is no longer outstanding, hut has been surrendered by him and accepted by the landlord: The case has been tried three times. At the first trial, the trial justice directed a verdict for the plaintiff, which was reversed by this court, upon the ground that the evidence presented a question of fact for the jury. Upon the second"trial, the jury found for, the defendant, and this court felt constrained to affirm the judgment upon the authority of its earlier judgment, hut gave leave to the appellant to appeal to the Appellate Division. The Appellate Division, • however, reversed the judgment, holding that there was no consideration shown for the promise on the landlord’s part to either accept or discharge the tenant; that there was no proof that the assignee did, in fact, become the tenant of the landlord, and that there was no- proof- that the as
The defendant claims that he has now presented evidence of consideration for the promise to release. I find no additional evidence upon this point, except a statement that, after the landlord agreed to accept the assignee as a new tenant and release the prior tenant, the latter said: “ You know, Mr. Ward, if you didn’t dp that, Mr. Migey wouldn’t take it, and I want to get out.” It seems to me that this presents no additional evidence of consideration. “ Consideration of a promise is the thing given or done by the promisee in exchange for the promise.” Langdell Cont. § 45. In this case, however, nothing was given, done or promised by the tenant in exchange for the promise to release, except, perhaps¿ the assignment to Kigey, and this, the Appellate Division has held, constituted no consideration. It may have been done in reliance upon the promise of the landlord, but it was not apparently done in exchange for the promise. This phase of the case, however, I think has received but little consideration either in this court or in the Appellate Division, and, in my opinion, deserves but little consideration. The original agreement is under seal, and the term outstanding was for over five years. If the parol agreement to release has, in any event, any effect, it is by reason of the fact that it has been actually executed and the assignee received as. the tenant in place of the assignor of the lease. If the landlord has actually accepted the assignee as a new and substituted tenant, then there has been a surrender of the lease by the earlier tenant by act or operation- of law. “A sur
Where the assignee of a lease merely enters into the premises, and the landlord receives the rent from him, but gives him no new lease, and the assignee in no way validly assumes the obligations of the old lease, I find no proof of a surrender and acceptance, and no execution of a previous promise to accept the assignee as tenant in place of the original tenant. The evidence of the acts constituting a surrender and acceptance should be plain. In the case of Vandekar v. Reeves, 40 Hun, 430, the court went further than in any other' case I have been able to find, to sustain such a surrender and ac
It follows that the judgment should be -reversed, and a new • trial ordered, with costs to the appellant to abide the event.
Concurrence Opinion
I concur in the view that the judgment must be reversed. The Appellate Division has decided that, even if the landlord orally promised to release the tenant, and accepted rent from his assignee, these acts did not terminate the lease; 146 App. Div. 824. That decision is binding upon 'this court, and effect can only be given to it by the reversal of this judgment.
Page, J., concurs. '
Judgment reversed and new trial ordered, with costs to appellant to abide event.