158 N.Y.S. 380 | N.Y. App. Div. | 1916
Lead Opinion
This appeal is from an order denying defendants’ motion for judgment on the pleadings. (Code Civ. Proc. § 547.)
The action is brought to recover $1,500 rent claimed to be due under a written lease. The complaint alleges that the plaintiff is the devisee of one Charles Halbe, who, on February 4, 1897, by an instrument in writing, leased to the defendants certain real estate in the city of New York for a term of twenty-six years from the first of May of that year, the defendants covenanting to pay to him, his executors, administrators and assigns the rent reserved in installments in advance on the first day of each month; that the lessees entered into possession, and that Charles Halbe — and since his death the plaintiff — has at all times performed the terms and conditions to be performed by the lessor, but defendants have failed to pay the installment of rent which fell due on the .1st of March, 1915. The defendants, by their amended answer, admit the making of the lease referred to in the complaint; that they entered into possession of the premises, and that the rent sued for has not been paid, but put in issue the allegation of performance on the part of the plaintiff and his predecessor and the non-performance by the defendants. Three separate defenses are then set forth, only one of which need be considered. This defense is to the effect that at the time of the execution of the lease the defendants were copartners
It is further alleged that on July 25, 1906, the Adams Dry Goods Company was consolidated with another corporation under the name of the O’Neill-Adams Company, which, after such consolidation, took over the assets and assumed the liabilities of the Adams Dry Goods Company, and that Charles Halbe received the rent from it.'
Then follow other allegations — mostly conclusions of law— which do not, as it seems to me, add anything to the defense attempted tobe set forth; e. g., it is alleged that it was “ the general purport and intent ” of the lease that the defendants should continue in the relation of lessee to Charles Halbe only until the incorporation of the Adams Dry Goods Company and the assignment of the lease to it; that Charles Halbe should
It is unnecessary to cite authorities to the effect that the conclusions of law in a- pleading add nothing to it. Its validity must be determined from the facts set forth and not from legal conclusions drawn therefrom by the pleader. When the answer here under consideration is thus tested I do not think the facts set forth establish a valid defense to the cause of action set out in the complaint, since it does not show a valid release of defendants from their covenant to pay the rent stipulated to be paid. It has long been settled that neither the consent of a landlord to the assignment of a lease nor the acceptance of rent from an assignee of the original tenant releases the latter from his covenant to pay the rent. (Casey v. Wheaton, 157 App. Div. 140; Ettlinger v. Kruger, 146 id. 824; Ranger v. Bacon, 3 Misc. Rep. 95; Wilson v. Lester, 64 Barb. 431; House v. Burr, 24 id. 525; Jackson v. Brownson, 7 Johns. 227.) Something more than this must be shown. It must appear, in addition thereto, that there was an express agreement by which the lessee was released from his covenant to pay the rent, or facts shown from which such agreement can be implied. Here it is not claimed there was any express agreement to release the defendants, nor are facts set forth from which, I think, such agreement can be inferred. It may be assumed that Charles Halbe was informed of the defendants’ purpose to form a corporation for the purposes stated, and that he consented to the assignment of the lease to that end. But even so, it does not follow that he thereby consented to or did release the defendants from their covenant to pay the rent.
Nor do I think Van Schaick v. Third Avenue R. R. Co. (49 Barb. 409) is an authority to the contrary. That was not an action to hold the original lessee, but a suit in equity to compel a corporation subsequently formed to perform the covenants of the lease. The liability of the original lessee on his covenant was not brought in question. It appeared that the original lessee took the lease under an express trust, evidenced
In the case now before us it appears that more than three years elapsed between the making of the lease and the formation of the Adams Dry Goods Company, during which period the defendants had the beneficial enjoyment of the demised premises and paid the rent stipulated.
But if it be assumed that the defense considered is sufficient in law — which I do not think it is — nevertheless the motion for judgment on the pleadings was properly denied. Issues are raised by denials in the reply, which can only be disposed of by a trial. It is only where the truth or falsity of facts alleged is unmistakably within the knowledge of the adverse party that his denials of any knowledge or information sufficient to form a belief thereof can be treated as a nullity and judgment on the pleadings granted. (Kirschbaum v. Eschmann, 205 N. Y. 127.) It is true that the reply contained certain denials of matters set up in the answer as to the truth or falsity of which the plaintiff must unmistakably have knowledge. For instance, the provisions of the lease, and as to such they do not raise an issue; but there are other denials which are good and do, as stated, raise an issue. The plaintiff, as before stated, is the devisee of the original lessor, Charles Halbe, and the latter’s knowledge cannot be imputed to him.
I think the motion was properly denied. It follows, therefore, that the order appealed from is right and should be affirmed, with ten dollars costs and disbursements.
Clarke, P. J., Smith and Davis, JJ., concurred; Dowling, J., dissented.
Dissenting Opinion
I dissent upon the ground that, under the allegations of the answer, either admitted or not properly put in issue by the form of the reply thereto, it sufficiently appears that both lessor and lessees, at the time of the execution of the lease and by a fair reading of its terms, contemplated that a corporation was to be formed to carry on the business of the individual lessees and that, when formed, it was to succeed to the business, take possession of the demised premises, and assume all the liabilities thereunder, including the payment of rent. Nor does plaintiff make any adequate denial of the allegation that he continued in all respects to recognize and treat the O’NeillAdams Company as tenant under the lease until March 1, 1915. For these reasons I favor a reversal of the order appealed from, and the granting of defendants’ motion for judgment on the pleadings.
Order affirmed, with ten dollars costs and disbursements.