228 A.D. 367 | N.Y. App. Div. | 1930
In February, 1925, the plaintiffs, by written instrument, leased certain premises in the city of Syracuse to a corporation named the C. II. Wood Company for a term of five years beginning May 1, 1925, at a monthly rental of $300, payable in advance on the first day of each month. In 1927 the property of the C. H. Wood Company, including its interest in the lease, was in the hands of a receiver appointed by the United States District Court for the Northern District of New York, and on the 30th day of November, 1927, the receiver of the C. H. Wood Company, under authority from the court, assigned to the defendant all the right, title and interest of the C. H. Wood Company in such lease. The defendant thereupon entered into possession of the leased premises and paid the rent which fell due on the 1st days of December, 1927, and Janaury, 1928. In this action, the plaintiffs seek to recover from the defendant the rent which, by the terms of the lease, became due on the 1st day of February, 1928.
It is the defendant’s contention that he was not obligated to pay the February rent because on the thirty-first day of January he assigned the lease to Joseph Leibel and wholly vacated the leased premises. The learned trial court, at the close of the evidence, directed a verdict in favor of the defendant on the theory that the defendant’s defense was established as matter of law.
The defendant, by accepting the assignment from the receiver, did not assume the obligations of the lease. As assignee there was no privity of contract between him and the plaintiffs, the landlords. His obligation for the rent reserved by the lease rested merely on privity of estate. (Mann v. Munch Brewery, 225 N. Y. 189; Walton v. Stafford, 14 App. Div. 310; Gillette Bros. v. Aristocrat Restaurant, 239 N. Y. 87, 90.) This privity of estate was not terminable by an abandonment of the premises, but was terminable by the surrender of the premises with the consent of the lessors, or by his assignment of the lease to a third party. (Seventy-eighth St. & B’way Co. v. Purssell Mfg. Co., 166 App. Div. 684; Walton v. Stafford, supra; Mann v. Munch Brewery, supra; Frank v. N. Y.,
We must notice another contention of the plaintiffs because, if it is sound, the plaintiffs were entitled on the record to judgment in their favor. The plaintiffs claim that under the terms of the lease the defendant was unable to make an effective assignment without plaintiffs’ consent. This contention is based upon two paragraphs of the lease, the material parts of which are as follows: “ The party of the second part [the lessee] hereby agrees not to assign this Lease or sublet said premises or any portion thereof without the written consent of said parties of the first part [the lessors] * * *
“ It is further agreed and understood that in case said first parties consent, suffer or permit the doing by said second party of any act or omission which might alter, change or modify any of the covenants or provisions of this agreement, such consent whether express or implied shall not be deemed to and shall not be a waiver of such or of any of the covenants or provisions of this agreement except for that instance alone, and shall not be construed to and shall not authorize said second party to make any further violation thereof.”
Originally, as the plaintiffs recognize, a covenant against assignment once waived by a consent of the landlord to one assignment cannot be used to defeat subsequent assignments. (Murray v. Harway, 56 N. Y. 337; Conger v. Duryee, 90 id. 594; Gillette Bros. v. Aristocrat Restaurant, supra.) The plaintiffs, however, rely on the last quoted paragraph of the lease to obviate this rule. It is
We are not required by this record to pass upon the questions as to whether such a covenant could by appropriate language be made to run with the land (See Dumpor’s Case, 4 Coke, 119-b; Cro. Eliz. 815; 23 Harv. L. Rev. 630), or whether, if so, the landlord’s right could be asserted to defeat the assigmnent without demanding a forfeiture of the term. (See Johnston v. Flickinger, 97 Misc. 169, 176; affd., 183 App. Div. 887.)
The judgment and order should be reversed and a new trial granted, with costs to the plaintiffs to abide the event.
All concur. Present — Sears, P. J., Crouch, Edgcomb, Thompson and Crosby, JJ.
Judgment and order reversed on the facts and a new trial granted, with costs to the appellants to abide the event.