160 N.Y.S. 962 | N.Y. Sup. Ct. | 1916
The plaintiff sues the defendant for the amount of rent due upon a lease made by a former owner of the premises to one Ellsworth Childs. This lease was made for a period of twenty-one years, from May 1, 1899, at the annual rent of $11,000, and contained a covenant that the lessee should “ not assign this lease without the consent of the party of the first part under penalty of forfeiture and damages.” The tenant in 1910 mortgaged his interest under the lease without the knowledge or consent of the plaintiff. In 1911 the mortgage was foreclosed and Child’s interest in the leasehold was, on September 15, 1911, sold at a judicial sale, pursuant to the order of this court. At this sale the defendant purchased the lease, but before taking title to the lease the defendant requested the extension of the payment of taxes and other favors from the landlord, and also requested a formal consent to the assignment of the lease, stating that a question might be raised as to the necessity of the landlord’s consent, which he desided to obviate. The plaintiff assured the defendant that she would comply with the defendant’s requests, provided she was satisfied of the responsibility of the new tenant. Thereafter the payment of back taxes was adjusted and the defendant took title to the lease. After title had passed the plaintiff’s attorney sent to the defendant’s attorney a formal consent, which reads as follows: “ I, Caroline H. Johnston, owner of the premises known as No. 1164 Broadway, mentioned in the annexed lease, do hereby consent to the assignment of said lease to J. Willis
Judgment accordingly.