Ayen v. Schmidt

Bossong entered into possession, and received rent from De Vita, and paid the full amount of rent reserved in the lease to the plaintiff up to February, 1912. In that month he moved his things to a store across the way, talcing with him the marble slabs, valued at about $100, out of the store windows for use in his new store. These slabs were part of the realty, which, under the terms of the lease, would have to be returned to the lessor at the end of the term, for the lease contained the following provisions:

“And it is agreed that if any rent should be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall he lawful for the said party of the first part to re-enter the said premises and to rerhove all persons therefrom, * * * and at the expiration of the said term the said party of the second part will quit and surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted.”

The- plaintiff was the party of the first part, and the defendant the party of the second part. After the assignee, Bossong, had moved his things to another store, the March rent was not paid, whereupon the plaintiff entered into negotiations, through his lawyer and representative, with Bossong to bring about a settlement for the removal of the marble slabs. There was also some talk about the rent, which resulted in Bossong paying to the plaintiff $250 in cash and receiving a general release for all claims due or thereafter to become due. There was only one month’s rent of $60 due at the time, and the testimony is that the marble slabs were worth about $100. Thereafter, in April, 1912, correspondence was exchanged between Schmidt, the lessee, and the plaintiff’s lawyer, which resulted in the keys being received by the plaintiff.

[1-3] The plaintiff brought this action against the defendant, his lessee, to recover the rent for the months of March, April, May, and June of 1912, and, as above stated, has recovered a judgment below. The defendant was liable on his covenants in his lease to pay the rent as it became due, and could not escape such liability by his assignment to Bossong. Bossong, as assignee of the lease in possession, was liable through privity of estate for the rent 'so long as he remained assignee; but he could relieve himself of this liability by reassignment of the lease to another. Whether he could escape liability by the mere abandonment of the premises without reassigning the lease is questionable; but there is no evidence in the case that he did abandon the premises, the agreed statement of facts being that he left the store and moved across the street. The plaintiff could have sued the defendant, Schmidt, for his rent, or the assignee, Bossong, at his-election, but could have but one satisfaction. These statements of law find support in the following cases: Ranger v. Baconj 3 Misc. Rep. 95 , 22 N. Y. Supp. 551 ; Wallace v. Dinniny, 11 Misc. Rep. 317 / 32 N. Y. Supp. 159 ; McKeon v. Wendellcen, 25 Mise. Rep. 711, 55 N. Y. Supp. 626 ; Moskowitz v. Diringen, 48 Misc. Rep. 543 , 96 N. Y: Supp. 173; McAdam on Landlord and Tenant (4th Ed.) p. 874; 1 Wood on Landlord and Tenant (2d Ed.) p. 740, § 336.

[4, 5] The lessor cannot receive rent or the equivalent thereof from-the assignee and also recover from the lessee. Likewise, if for the

failure to pay he re-enters the premises under the terms of the lease, he can no longer hold either for the rent. If payment by the assignee relieves the lessee, a release of payment for rent due or to become due would also release the lessee. Bossong, having an assignment of the lease, and removing to another store before the term expired, and not reassigning the lease, nor having abandoned the place, might have been liable for the accruing rent. About this there might have been some question. Dorrance v. Jones, 27 Ala. 630 ; Sanders v. Partridge, 108 Mass. 556 . The plaintiff accepted from him for a general release $250, which was in excess of the value of the slabs taken and of the rent then due. It was evidently a release, as it states, from any further liability for rent under the assigned lease, and should thereby release the lessee and the assignor; and this conclusion is further supported by those acts which amounted to a re-entry by the lessor under the lease and an election to terminate. Upon the payment of rent, the plaintiff, under the terms of the lease above quoted, had the right to take possession of the premises and end the lease. He exercised this right when he demanded from the assignee immediate payment for damage to the leased property and took the keys to the place.

[6] Schmidt, the lessee, was liable to restore the premises at the end of three years in as good condition as he had received them. During that period he could have removed the marble slabs or made, changes, provided he restored the premises to their original condition at the end of his term. The lessor would have no immediate remedy for damages, although under certain conditions he might reenter and oust the tenant, or enjoin him. There can be, however, little question but what the lessee would have the right to make such changes as could be readily restored or replaced. That the lessor sought relief at once, and accepted pay from Bossong for the changes in the removal of the slabs, indicates that the term was at an end and the premises were to be restored.

[7] The injustice of the plaintiff accepting full value for the marble slabs, which constituted a material part of the demised premises, and then compelling the lessee to pay the full amount of rent reserved by the lease for the store, which included the marble slabs, is apparent as soon as stated. If the plaintiff had leased two rooms to the defendant, and taken from an assignee full payment for the value of one which the assignee had demolished, could he collect on the lease thereafter the rent reserved for the two ? I think not. De Vita, upon such re-entry, became a tenant of the plaintiff.

This judgment should be reversed, and, as there are no disputed questions of fact, judgment should be rendered for the defendant, with cost of the trial and appeal. All concur.