Zinwell Co. v. Ilkovitz

144 N.Y.S. 815 | N.Y. App. Term. | 1913

Page, J.

The action was for two months’ rent under a written lease. The facts are undisputed. The plaintiff entered into a lease with one Ponzoni, whereby certain premises were rented to him for a term of three years at a yearly rental of $3,150 per year, payable in equal monthly payments, which rent Ponzoni covenanted and agreed to pay. Ponzoni, on or about the 1st day of October, 1912, assigned the lease to the defendants with the plaintiff’s consent. The defendants on the same date executed the following: “ For and in consideration of one ($1.) dollar and other valuable considerations and the consent to the assignment of the within lease to us, we do hereby jointly and severally, for ourselves, our heirs, executors and administrators, assume and agree to observe and perform each and every one of the covenants contained in the said lease, and which on the part and behalf of the lessee therein named are to be observed and performed. ’’

The defendants entered into possession under the assignment and the plaintiff accepted rent from them. Subsequently the defendants assigned the lease to George and Ernest Adams, who went into possession, and the landlord accepted rent from them. Subsequently they assigned the lease to Andrew Veuyenklis, who went into possession, and the landlord accepted rent from him. The Adams and Veuyenklis executed an assumption agreement similar to that executed by the defendants. Rent for the months of May and June, 1913, being unpaid, plaintiff’s action is to recover $500 thereof, waiving the remainder.

The learned trial justice dismissed the complaint upon the merits. In this he erred. By the assignment of the lease, together with the agreement, on the part of the assignee, to assume all the covenants of the lease, not alone did the assignee become obligated to pay the rent by reason of privity of estate, but also by privity of contract with the lessor. When the assignee, therefore, in turn assigned the lease and his assignee went into possession, the privity of estate was broken but the privity of contract was not thereby destroyed, and the defendants remained liable upon their contract for the rent that might subsequently accrue up to the end of the term. Jackson v. Brownson, 7 Johns. 227; House v. Burr, 24 Barb. 525; Ranger v. Bacon, 3 Misc. Rep. 95. No surrender of the lease was occasioned by the acceptance of rent from defendant’s assignee even though the assignment was made with the landlord’s consent, the defendants were not thereby discharged, there was no new lease made nor any act inconsistent with the original lease.

It was nothing more than accepting payment through the hands of another of the rent reserved by the original lease and in accordance with its terms and conditions. Durand v. Curtis, 57 N. Y. 7; Manley v. Berman, 60 Misc. Rep. 91; Dassori v. Zarek, 71 App. Div. 538.

The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Lehman and Whitaker, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.