185 A.D. 749 | N.Y. App. Div. | 1919
The plaintiff alleges that she leased the premises known as No. 41 West Seventy-first street from the estate of John Thompson for the term of three years, ending on the 30th day of September, 1917, at an annual rental of $2,100, payable in equal monthly installments, in advance; that during her. tenancy and on the 30th of October, 1916, she sublet the premises to the defendant for the period of eleven months, ending on said 30th day of September, 1917, at a gross rental of $900, payable in equal monthly installments, in advance; that when defendant took the sublease of the premises he well knew that plaintiff held as a tenant of said estate and knew in general the terms of her lease thereof, and that her right to possession would terminate on said 30th of September, ■ 1917, and. that his right to possession would terminate on the same day; that defendant entered into possession under said sublease on November 1, 1916, and breached his covenant to surrender possession at the expiration of the term, and without the consent of the plaintiff omitted and refused to surrender possession and continued in possession and remained in possession when this action was commenced; that owing to
The demurrer is for insufficiency. • The leases to the plaintiff and to her sublessee were in writing and are annexed to and made part of the complaint. The lease to the plaintiff contains an express provision obligating her to surrender possession at the expiration of the term and contains a covenant on her part not to assign or sublet in whole or in part without the written consent of her landlord. The complaint contains no allegation with respect to whether she sublet with the consent of her landlord in writing, or otherwise; but the monthly rental plaintiff was paying was $175, and the monthly rental she was to receive from the defendant was only $81.82, and, therefore, it is not to- be inferred that her landlord, accepted the sub-lessee as assignee of the lease, and since it does not appear that her landlord consented to the execution of the sublease, it is immaterial whether or not the sublease as between the plaintiff and defendant constituted an assignment of plaintiff’s lease (See Schwarzler v. McClenahan, 38 App. Div. 525; Sullivan v. Ringler & Co., No. 3, 59 id. 184; affd., on opinion below, 171 N. Y. 693); but I think it did not, for she reserved the right of re-entry and, as there was no reference therein to plaintiff’s lease, the surrender by defendant at the expiration of the term was to be made to her. (See Collins v. Hasbrouck, 56 N. Y. 157; Ganson v. Tifft, 71 id. 54; Post v. Kearney, 2 id. 394; Schwarzler v. McClenahan, supra.) The sublease contains a like provision for the surrender of the premises at the expiration of defendant’s term. This covenant he violated and his holding over, so far as the plaintiff’s
The learned court at Special Term granted the interlocutory judgment on the erroneous theory that the plaintiff’s right to recover was by subrogation from her landlord, but since it does not appear that her landlord consented to the subletting of the premises or recognized the defendant as a tenant, the defendant was under no contractual obligations to pay rent to the plaintiff’s landlord, and there was no basis for subrogation on the theory that the plaintiff paid the rent which the defendant should hav.e paid, and for this reason we deem it necessary to point out the theory on which we think the recovery can be sustained.
It follows, therefore, that the interlocutory judgment and order should be affirmed, with costs.
Clarke, P. J., Smith, Shearn and Merrell, JJ., concurred.
Judgment and order affirmed, with costs.