Alicia Realty Co. v. Miller

Headnote

Alicia Realty Co. v. Miller, 163 App. Div. 856 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 20, 1914, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover rent under the terms of a written lease made by former owners of the premises to the defendant. Plaintiff purchased the premises subject to the lease. At the time of purchase they were occupied by a subtenant who subsequently defaulted in payment of rent. Demand was made upon defendant for payment of arrears of rent but he refused to pay. Subsequently he entered into an agreement that if the subtenant was dispossessed he would take over a new lease on the identical terms of the old one. Appellant asked for reversal on the grounds: I. That after the assignment (of lease) and after the assignees had possession, and after notice to the plaintiff in May, 1910, of the financial condition of the tenant in possession, the plaintiff was bound to take notice of defendant’s demand and to take such action as would protect the defendant (i. e., to dispossess everybody, including defendant, from the premises); and that if there were any doubts about the defendant’s liability surviving summary proceedings they were removed by plaintiff’s agreement. II. Because whether or not there was an acceptance of the tenant in possession in place of the defendant was a question for the jury because the plaintiff had refused to enforce its remedy after having procured from the defendant the agreement. III. Because the court erred in receiving evidence of moneys paid for insurance when no such claim was pleaded.