25 Misc. 711 | N.Y. App. Term. | 1899
The plaintiff in this case was the lessee under a certain lease which contained a covenant on his part to pay the Croton water tax, and also the annual taxes that should be assessed upon the demised premises. On the 23d day of August, 1892, he assigned the lease to the defendant, subject to the covenants and conditions thereof, but without any assumption of the same on the part of the latter. The defendant remained in possession until June 30, 1893, when the lease was in turn assigned by him to another. On the 1st day of May, 1893, there became due and payable on account of a Croton water rent assessed upon said premises, the sum of $84.50, and on the 29th day of August, 1893, the annual taxes assessed upon said premises for that year, amounting to the sum of $364, were duly confirmed. These charges remained unpaid until the 24th day of February, 1896, when they were discharged by the owner, who was reimbursed by the plaintiff, and the latter now sues to recover from the defendant one-half of the taxes and two-twelfths of the Croton water rent. The trial justice awarded judgment in favor of the plaintiff for the proportion of the Croton water rent sued for, hut refused to recognize the plaintiff’s right to recover any part of the taxes. We think that the judgment was right, and should be affirmed, with a modification which will be referred to hereafter.
The plaintiff claims that where the assignee has transferred his interest between rent days, he is liable for a proportionate part of the rent for such period, and he claims the application of the same alleged principle to the case of taxes and Groton water rents. The claim, however, is without any support in reason or authority. As we have already said, the only duty which rests upon the assignee is to comply with the covenants of the lease when during the period of his ownership the claim arising under them has matured.
In the case at bar, there was no breach of the covenant to pay taxes while the defendant was assignee of the term. The taxes were not payable until they had been confirmed, and they were not confirmed until after the defendant had assigned his interest in the lease to another. As the duty to discharge the taxes did not arise until after the second assignment, there was no breach of the covenant while the defendant was assignee, and there was, therefore, no liability on his part to the landlord to pay them in whole or in part. The plaintiff, therefore, has no right of action against the defendant with respect to the same.
So far as the Croton water tax is concerned, however, the case is different. The tax there became due and payable on the 1st day of May, 1893, while the defendant was in possession of the demised premises under his assignment. On that date it was
If the plaintiff had not limited his claim to one-sixth of the amount of the Croton water rent so paid, he would have been entitled to judgment for the whole, but having done so, the amount of his recovery cannot be increased. He is entitled, however, to interest thereon from the date of the payment made by him to the landlord down to the time of the trial, amounting to the sum of $2.63. The judgment should, therefore, be modified by adding this sum thereto, thus increasing it to the sum of $31.56. As thus modified, the judgment is affirmed, but under the circumstances of the case, without costs.
Giedebseeeve and Giegebich, JJ., concur.
Judgment modified, and as modified affirmed, without costs.