Gerken v. Smith — 11 N.Y.S. 685

Majority

p. 685

Gerken v. Smith.

(City Court of New York, General Term.

December 1, 1890.)

Headnote

Assignment on Lease—Liability on Lessee.

A lessee continues liable upon the express covenants in the lease, though he has assigned the term, and the assignee is liable by reason of the privity of estate, and has paid rent to the landlord.

Appeal from trial term.

Action by Cordt Gerken against Michael J. Smith. There was a verdict for plaintiff. From the judgment entered thereon defendant appeals.

Argued before McAdam, C. J., and Ehrlich, J.

Doherty, Durnin & Hendricks, for appellant. James P. Nieman, for respondent.

The action is upon a written lease for the term of five years and one month, from April 1, 1889. It contains a provision that the lessee will not assign the lease without the written consent of the landlord first had and-obtained. Sometime in 1889, the defendant, who was the tenant, transferred the lease to one McEnty, who entered into possession. There is evidence that the landlord orally assented to the transfer, but, as he collected rent from the tenant with knowledge of the transfer, we regard the provision against assigning the term as of little or no consequence. The defense, surrender, is claimed to be made out by the facts stated. The law which we regard as settled is that the lessee continues liable upon the express covenants in the lease by virtue of the privity of contract notwithstanding any assignment he may make, and notwithstanding the fact that the assignee may become liable by reason of the privity of estate. While the tenant may assign his term, and the landlord, with knowledge of the transfer, accept rent from the tenant, the liability of the tenant on his covenant to pay rent is in no manner discharged. It is clear, therefore, that the facts proved constitute no defense, and that the verdict directed by the trial judge in favor of the plaintiff was properly directed, and the judgment entered thereon must be affirmed, with costs.