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Dassori v. Zarek

71 A.D. 538 Court N.Y. App. Div. English

Delivered by Jenks, J.:

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p. 538
Frederick Dassori, Appellant, v. Siegfried S. Zarek, Respondent.

Headnote

Lease — liability of an assignee thereof for rent.
An assignee of a lease is liable for the rent only during the period that he remains in possession of the demised premises, and if he assigns his term and vacates the premises he is not liable for reut'.subsequently accruing.
This rule is subject to the exception that if the assignment contained an express contract or covenant-by the assignee to pay the rent or to perform the covenants of the lease, including a covenant, to pay the rent, then he may be held upon his contract or' covenant despite his subsequent assignment of the lease.
The following provision, placed after the habendum clause in the assignment, “subject, nevertheless, to the rents, covenants, conditions and provisions" of the original lease, which lease contained a covenant for the payment of rent, will not render the assignee liable for rent accruing after he has assigned the term and vacated the premises.
Appeal by the plaintiff, Frederick Dassori, from a judgment of the Municipal'Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered in said court on the 29th day o,f November, 1901, dismissing the complaint upon the merits.
The action was to recover rent for the month of June, 1901, upon the lease. The pleadings were oral and the answer was a general
p. 539
denial and a former adjudication. The premises were formerly-owned by Benedix, who leased them to Dittmer for five years from Hay 19, 1897. Benedix conveyed the premises to Hollenhauer on August 1, 1900, and on December 19, 1900, Hollenhauer and this defendant made an agreement, under seal, which, after reciting several mesne assignments of the lease and that the final assignee, Aliys, was about to transfer the lease to the defendant, reinstated and restored the lease and confirmed the defendant in the enjoyment thereof, with all of the rights and privileges given and granted in the original léase, and which the original lessee and the several assignees thereof might have had or have thereunder. An assignment of the said lease, made by the said Aliys to the defendant, dated December 18, 1900, was recorded on December 20, 1900. On January 24, 1901, Hollenhauer conveyed the premises to the principal of the plaintiff, subject to the original lease of Benedix to Dittmer, and to the agreement of Hollenhauer and the defendant, dated December 19, 1900, and heretofore described. The defendant entered into possession and for a period paid the rent thereof. The rent was paid up to J une, 1901, but the defendant denied that any payments were made by him subsequent to Harch, 1901. The defendant read in evidence an assignment of the lease executed by him to Brodie, dated Harch 26, 1901, and gave evidence to establish that on that day he executed a bill of sale of the chattels in the premises to the said Brodie, that he then put Brodie in possession and introduced Brodie to the plaintiff as the new tenant. The plaintiff disputed the testimony offered by the defendant so far as it related to the defendant’s acts and conversation with the plaintiff’s agent in charge of the premises.
Richard A. Rendich, for the appellant.
Louis Malthaner, for the respondent.

The assignee of a lease is liable for the rent only for the period that he is in possession, and if he assign his term and gó out, his liability is thereupon determined. (Durand v. Curtis, 57 N. Y. 7 ; Childs v. Clark, 3 Barb. Ch. 52 , 60; Clark v. Aldrich, 4 App. Div. 523 .) This rule is subject to the exception that .if the assign

p. 540
meñt to the assignee contain his express contract or covenant to pay the rent or to perform the covenants of the lease, which embrace a covenant to pay the rent, then he may be held upon his contract or covenant despite his own subsequent assignment.

The learned counsel for the appellant insists that the assignment to the defendant did contain a covenant on his part which establishes his liability. After the hahendum clause the instrument reads, “ Subject, nevertheless, to the rents, covenants, conditions and provisions therein also mentioned-.” The reference is to the original lease, which contained a covenant for the payment of rent. This precise question was decided adversely to the appellant in Wolveridge v. Steward (1 Cromp. & M. 644), and the reasoning of the court, per Denman, C. J., is. conclusive and exhaustive. (See, too, 1 McAdam Landl. & Ten. [3d ed.] § 240.)

The judgment must be affirmed, with costs.

All concurred.

Judgment of the Municipal Court affirmed, with costs.

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