49 Misc. 121 | N.Y. App. Term. | 1905
In this proceeding to recover possession of certain premises for non-payment of rent, it was claimed that rent was paid to the true landlord and that the landlord-appellant had divested himself of all right by assignment. By instruments in evidence, it appears that one Sender Jarmulowsky, on January 25, 1899, leased the premises in question to Chaya Esther Shumer for the term of ten years from September 1, 1899, at a rental of $85.59 monthly in advance; that, on May 5,1903, Chaya Esther Shumer let said premises to Max Hurowitz “ as long as the landlord herein shall have the lease on said premises ” at an annual rental of $1,800, payable in equal monthly payments in advance, with right,of re-entry in case of the breach of certain conditions and to a delivery of possession at the end or other expiration of the term; and that, on December 16, 1904, Chaya Esther Shumer and Meyer Shumer consented to a transfer of the latter lease to Elias Verschleiser. \yhile the lease between the original lessee and her lessor provided against the assignment, underletting or underleasing without consent in writing, it may be, so far as appears from the record, and no question thereto having been raised, that has been waived; wherefore regard needs only be had to this proceeding as one between the original lessee and her transferees, which was not the case of Stewart v. Long Island Railroad Co., 102 N. Y. 601. Herein there were reservations, not only of re-entry on breach of certain conditions, but of new rent, and, though there was a demise for the residue of the term, there was a reservation of delivery of possession at the end of the term, and so a fragment of the original term; for
Scott and Bisohoee, JJ., concur.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.
