Parkhurst v. Wolf

Headnote

Pleading—allegations necessary to charge asiignee of term or lease, on covenants.

The complaint duly stated that in February plaintiff’s assignor rented certain premises to B. & Bro.; that in December of the same year, B. & Bro. “ made an assignment of all their effects to the defendant in this action, who duly accepted the same;” that defendant, “as assignee, entered into and occupied the premises.” Held, in an action upon the covenants of the lease, that the above allegations were insufficient to charge defendant as assignee of the term or lease.

Appeal from judgment and order sustaining defendant’s demurrer to complaint.

This is an action to recover for rents of certain premises in the city of New York on a contract set out in the complaint, and falling due during the occupancy of the defendant, Abraham Wolf, the assignee of Philip Bick & Bro., the original lessees. The plaintiff claims by virtue of an assignment from the original lessor.

The following opinion was delivered by the court at special term:

Sedgwick, Ch. J. “Whether the assignment was in trust for creditors or for defendant’s personal benefit, I find no allegation in the complaint that the lease referred to was assigned by it. The complaint alleges that the firm “ made an assignment of all their effects to Abraham Wolf, the defendant in this action, who duly accepted the same.” There is no allegation that at the time of the assignment he was in possession of the lease or the term. The complaint does state, that on February 16,1877, the assignor of plaintiff rented,

by a written agreement, premises, &c., described in the agreement, but this, at the most, is a piece of testimony creating the presumption that the lease continued in the firm’s possession down to December, when the assignment was made, and the defendant is not to be concluded by a statement of a presumption in a pleading where he has not opportunity to offer testimony or plead it in defense.

“ There is no allegation that the firm was in possession of the premises described in the agreement, at the time the assignment was made, or that they transferred the actual possession to the defendant.

“ The complaint goes on to state that the defendant, ‘as assignee, entered into and occupied the premises.’

“It is immaterial whether he entered as assignee, unless he was in fact assignee ; moreover, his entry as assignee may have made him liable to the real holder of the term or assignor of the agreement rather than to the plaintiff.

“ There, therefore, seems to be no statement sufficient to show that the defendant was bound .by the covenants of the agreement. The complaint does not profess to be an action for trespass, or for use and occupation simply; since, through the defendant’s occupation, there was an outstanding term under the agreement.

“As against the pleading this must be considered the fact.

“ Demurrer sustained, with leave to amend on payment of costs.”