65 N.Y.S. 40 | N.Y. App. Div. | 1900
The proof is clear that the assessments of the five per centum on -the original value of each lot assigned to defendant were made con-iormably to the rules and regulations of said association, and that-proper notice thereof was received by the defendant.
The original agreement expressly covenanted that the manner of ■paying rent by the lessee Was to meet the assessments which were limited to five per centum of the value of each lot as fixed and •determined by the association in 1879. This was, therefore, a covenant to pay rent and hence ran with the land. (Bedford v. Terhune, 30 N. Y. 453, 460; Frank v. N. Y., L. E. & W. R. R. Co., 122 id. 197, 201; Dolph v. White, 12 id. 296, 301; Wood Landl. & Ten. § 336 ; Fennell v. Guffey, 155 Penn. St. 38.) Consequently the defendant as assignee became chargeable with its pay
The lessee assigned his lease to the defendant in its entirety, not reserving a fragment of the time or any' of the rent to himself. This created a privity of estate between the lessor and the defendant, and that was recognized by the latter as he attorned directly to the original lessor. He did not assume to deal with his assignor, and the latter apparently made no claim to any interest in the lots. The defendant’s substitution for Harbottle was complete, and this' constituted an adequate basis for causing a direct liability to inure to the association. (Stewart v. Long Island R. R. Co., 102 N. Y. 607.)
It is urged, that because defendant never went into possession, he is not liable for rent within Demainville v. Mann (32 N. Y. 197). In that case the defendant Mann was the assignee of an undivided two-thirds of the demised premises while one Hatch was the •assignee of the remaining one.-third, but had never been let into possession. The assignee of the larger share occupied the entire -t leased land to the exclusion of Hatch, enjoying all the fruits of the premises, and the court held that the occupant alone was chargeable with the payment of the rent. In that case Hatch got a mere naked light and the possession which it was incumbent upon his assignor to vest in him did not accompany the assignment. He could not ■oust the occupant as he was confessedly in lawful possession, for his tenancy extended to an undivided two-thirds of the land. An important distinction in the present case lies in the fact ■ that here the assignment was for the entire term, and where that is its ■character possession is not essential for liability tó be incurred on the part of the assignee. He stands for his predecessor in interest and that creates the requisite privity. As was said in Wood’s Landlord and Tenant, section 335 : “A person who has accepted a valid; •assignment from the lessee, although he has not taken possession of the premises, becomes liable for- rent subsequently accruing, and for breaches committed subsequently to the assignment, of such of the lessee’s covenants as run with the land.” (See, also, Chaplin Landl. & Ten. § 351.)
The following is from the opinion in Walton v. Cronly (14
So far as I have been able to find, the cases which make the liability of the: assignee of a. lease- dependent upon possession have in them 'some other controlling circumstance. There exists either ai reservation of part of the demised estate in the assignor, the inability of the, assignee, to obtain possession, or the instrument was. merely designed as collateral security, or a kindred significant fact, dominates the décision. I have been unable to find, any authority to the effect that, where there is an assignment of the entire estate,, ratified by the lessor, and, where actual occupancy rests wholly with the lessee, he must in.fact go into possession before he can be' made to pay rent to the lessor. The moment he accepts an absolute-assignment of the entire estate he is liable to the lessor on the covenants' in the original lease.
But in this case we need not be driven do that rule to attach liability to the defendant. He has paid rent on every one of the lots transferred to him, and pursuant to assessments made in compliance with an agreement identical with the one referred to. He not only accepted the assignments but recognized the method adopted by the association for. arriving at its yearly rent. After this manifest acknowledgment of his obligation to pay rent according to the covenant in the lease, he certainly cannot expect to be absolved from his self-assumed liability because he voluntarily refrained from ■ going into the actual possession of the premises. That would enable him to keep a leash on his right to this long tenancy if it should prove valuable, but to sever it the moment the burden exceeded the benefits, although retaining the nominal leasehold title in himself.
Again, the point is pressed that, because the agreement provided for a forfeiture in the event of non-payment of the rent, no-other remedy is available to the lessor. By the covenant in the agreement the lessee unconditionally agreed to pay the yearly rent as fixed by the party of the first part. The right of forfeiture is another' remedy and an additional security to the lessor. The rent
The title of the association was absolute, and even though its life ■terminated it could not cut short the period of tenancy.
. The judgment is'.reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.