Sanford v. Zimmern — 76 Misc. 434

Majority

p. 434

Charles P. Sanford, as Trustee in Bankruptcy of James J. Penny and George L. Anderson, Individually and the Firm of Penny & Anderson, Appellant, v. Joseph Zimmern and Abraham Zimmern, Respondents.

(Supreme Court, Appellate Term, First Department,

May, 1912.)

Headnote

Landlord and tenant — leases and agreements in general — assignment and subletting — right of tenant to assign in general — covenants running with the land.

A covenant under which a tenant deposits money as security for carrying out "a lease is for the benefit of the landlord and does not run with, the land.

p. 435

Where, after tenants ■ had assigned their lease to certain premises, they were individually and as partners adjudicated bankrupts, and it is admitted that the lease had expired and had been fully complied with on the part of said bankrupts, their trustee is entitled to recover the amount deposited by them as security.

Appeal by plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, , first district, rendered in favor óf the defendants.

Lesser Brothers (George L. Stamper, of counsel), for appellant.

Hays, Hershfield & Wolf (Walter J. Bose, of counsel), for respondents.

This action is brought to recover $500 deposited by Penny and Anderson as security for carrying out the terms of a lease which the defendants made to Penny and Anderson for the term of two years from May 1, 1909.

The landlords agreed to return the sum so deposited at the expiration of the lease, provided all the covenants on the part of the tenants have been performed.

In July, 1909, Penny and Anderson assigned their.lease to one Weiss who assigned it to the Lincoln Square Bestaurant Company, which assigned it to one Jenson. In August, 1911, Penny and Anderson, individually and as copartners, were duly adjudged bankrupts and the plaintiff was duly appointed trustee of their, estate. It is conceded that the lease has expired and that its terms and cqnditions were fully complied with on the part of the tenants. The covenant under which the money was deposited was for the benefit of the lessor. It was collateral and personal and did not run with the land. Under these circumstances the assignee of the tenants cannot sue upon it. Fallert Brewing Co., Limited, v. Blass, 119 App. Div. 53 .

We are of the opinion that the learned court below erred in dismissing, the complaint and that the judgment'should

p. 436

he reversed and a new trial ordered, with costs to the appellant to abide the event.

Guy and Gerard, JJ., concur.

J udgment reversed and new trial' ordered, with costs to appellant to abide event.

Cases cited

Joseph Fallert Brewing Co. v. Blass 119 App. Div. 53 N.Y. App. Div. 1907-04-19 p. 435