14 Daly 54 | New York Court of Common Pleas | 1886
It appears that the plaintiff was the tenant of one Morrell, under a lease for two years from May 1st, 1884, of the whole of the premises 474 Fourth Avenue, to be used for his market and butcher shop and barber shop; that he sub-let a part of said premises, the barber shop, to the defendant, retaining the other part until January 1st, 1886, when he sold out his business to one Levy, and gave the latter possession of the premises he, plaintiff, had occupied. Levy was accepted as tenant by Morrell, and paid rent to the latter for the whole premises, including the barbershop, with the assent of plaintiff. Levy was not in possession as assignee nor as under-tenant of plaintiff. The effect of this transaction was a surrender by operation of law of the term created by the lease from' Morrell to plaintiff. Had there been an under-letting by plaintiff to Levy, the circumstances would have constituted a surrender, because there was a substitution of Levy as tenant in place of plaintiff. “ So where the tenant under-let the premises, and the landlord accepted the under-tenant as his tenant, and collected rent from him, which arrangement was assented to by the original tenant, the court held that this amounted to a virtual surrender of the tenant’s interest by operation of law.” (Taylor’s Land. and Ten. § 514, and cases cited.) The case is much stronger where the party accepted as tenant is not the under-tenant of the lessee, and
But even if the lease were not surrendered, and plaintiff had the right to collect rent from his sub-tenant, yet his default in making payment to his lessor authorized the subtenant to pay directly to the latter, and this without even a demand or any threat of suit, the lessor having the right of re-entry for such default (Peck v. Ingersoll, 7 N. Y. 528). The sub-tenant, the defendant, has paid all the rent now sued for to Levy, by direction of the lessor Morrell, and this is equivalent to paying directly to the landlord. Plaintiff contends, however, that he was not in default, because Levy had already paid the whole rent to the lessor, and collected from the sub-tenant for his own benefit. But it could be contended with equal justice that as defendant was so directed to pay his rent to Levy, before the latter made any payments whatever to the lessor, that Levy merely received it from the defendant to make up the rent
The judgment should be reversed, with costs. A new trial will not be ordered, as plaintiff’s case seems without merit. If he desires further litigation, there is nothing to prevent his bringing another action.
Larremore, Ch. J., and Van Hoesen, J., concurred.
Judgment reversed, with costs.