114 Misc. 540 | N.Y. App. Term. | 1921
The trial judge correctly stated the existing rule to be that where a lessee sublets the demised premises for the unexpired term the transaction in effect, as far as the original lessor is concerned, is an assignment of the lease, and the original lessor can proceed against the so-called sub-lessee as assignee of the term. Stewart v. Long Island R. R. Co., 102 N. Y. 601.
We incline to the view that the dissenting opinion of Judge Finch in the case cited enunciates a better rule governing assignment and subletting; but, as the dissenting judge himself says in his opinion, the old fiction which was deemed to have been disposed of by prior decisions of the Court of Appeals (Collins v. Hasbrouck, 56 N. Y. 157; Ganson v. Tifft, 71 id. 54; Post v. Kearney, 2 id. 394) “regains its old power and begins a new reign. The doctrine which I thought should be dethroned invites to its coronation. I must be permitted to decline.”
However, the trial judge in this case overlooked the fact that we must consider between what parties the question arises. Here it arises between the original lessor and lessee, not, as in the Stewart case, between the original lessor and lessee’s transferee. Under the doctrine of the Stewart case, between the original lessee and his lessee or transferee, even though the original lessee demises his whole ternoq if the parties
It appearing from the answer that plaintiff has prevented defendant’s tenant from taking possession of the premises, such an interference on the part of the original lessor would authorize a finding of eviction (Burn v. Phelps, 1 Stark. 94; Lawrence v. French, 25 Wend. 443; Doran v. Chase, 2 Wkly. Notes [Pa.], 609; 2 McAdam Landl. & Ten. [4th ed.] 1414, § 414), and the plea considered as a defense and counterclaim is on its face sufficient.
Gut and McCook, JJ., concur.
Judgment reversed and new trial granted, with thirty dollars costs to appellant to abide event.