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Foster v. Oldham

4 Misc. 201 Court General Term, English

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p. 201
Foster et al. v. Oldham, as Assignee, etc.
(New York Common Pleas
General Term,
June, 1893.)

Headnote

A lease of premises held hy an assignor passes to his assignee under a general assignment for the benefit of creditors.
In an action against an assignee for rent of premises occupied by him as assignee, evidence that the assignee promised to pay the rent is proper.
Although an assignee for the benefit of creditors is not bound to ratify a lease of his assignor, if he occupy the premises he is liable for the time he actually occupies them, not upon the lease, but on a quantum meruit. It will be assumed that the rate agreed to be paid by the assignor was a reasonable rent.
Appeal from a judgment of a District Court of the city of Hew York.
Charles Putzel, for plaintiff (respondent).
WiTbm' Oldham, for defendant (appellant).

The action was brought to recover of the appellant, as assignee of Péarce & Co., four months’ rent of certain premises claimed to have been occupied by him as .assignee, etc. The appellant contends that the justice below •erroneously admitted the testimony of certain witnesses tending to prove a promise by the defendant to pay the rent of the premises occupied by him, and that the justice at the close -of the case erroneously refused to dismiss the complaint.

There was no error in admitting defendant’s promise to pay. Under the general assignment, the lease as well as the other property of the assignors was conveyed to him. It is true he was not bound to ratify the lease, but if he occupied the

p. 202
premises lie was bound to pay rent for them even without a promise, and, therefore, the evidence objected to could not have injured the appellant.

As a rule the assignee of a lease is not liable for the rent of the demised premises except for the time he occupies them. 2 Platt Leases, 416 ; Taylor Landl. & Ten. § 444. This is as-true of an assignee under an assignment as of an assignee of a lease. Litchfield v. White, 7 N. Y. 438 ; Journeay v. Brackley, 1 Hilt. 447; Stern v. Florence Sewing Machime Co., 53 How. Pr. 478 ; Anderson v. Hamilton, 16 Daly, 18 . But he is liable for the time he actually occupies the premises. It is true that in such case it may be that he is not liable under the lease, but on a quantum meruit. It will, however, be-assumed that the rate agreed to be paid by the assignors to the landlord was a reasonable rent. There being a conflict as to-whether the appellant was in actual possession, it was a question of fact for the court below to determine, and we think from all the evidence it properly decided that question of fact in favor of the respondents.

The judgment should, therefore, be affirmed, with costs.

Judgment affirmed.

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