120 N.Y.S. 986 | N.Y. App. Term. | 1910
Lead Opinion
Action to recover rent under a written lease dated January 20, 1908, covering a term of thirty-three months from January 1, 1908. At the foot of the instrument is an undated assignment thereof to Bernard H. Schwarting and Samuel Kushner, who, by their signatui*;s, assumed the lease and all its covenants. The defendant answered, first, admitting the execution of the lease but only as stated in his subsequent separate answers; and, second, by way of separate defenses, he set up these facts: That, being a monthly tenant of the premises covered by the lease, he was negotiating to sell his business to Schwarting and
The judgment is erroneous and should he reversed and a new trial ordered, with costs to appellant to abide the event.
Concurrence Opinion
I agree with Mr. Justice Dayton in the result reached but not in his views. I do not believe that the first defense can he sustained upon the theory that the facts pleaded would establish that the lease had “no force, efficacy or effect.” Grierson v. Mason, 60 N. Y. 394. In that case the instrument was never intended to give rise to any right between the parties; in this case the plaintiff intended to give the defendant a valid lease for the purpose of allowing him to transfer the same immediately to his assignees who assumed all the obligations thereof. The defendant does not claim that the instrument on its face does not express the true intent of the parties. He claims only that, after the lease was made under the circumstances
Giegerich, J., concurs with Lehman, J.
Judgment reversed, and new trial ordered.