Wright v. Kelley

By the Court

Whether this action can be maintained against the -defendant, must depend upon the question, whether Warren, his assignor, was liable to the ■ landlord or any other party to the lease, for the quarter’s rent in question. The assignment from Warren to the defendant was in terms, “he to pay the rent, &c., as herein provided, as fully as I am bound to pay the same.” This is an implied obligation on the part of the defendant, to pay, coextensive with Warren’s liability, and no further. As mere assignees of the original lease, neither the defendant nor Warren could be made liable for the rent in question, as it did not accrue while either of them were assignees, but long after each vf them had assigned his interest, and had gone out of possession of the demised property.

An assignee of a lease is only liable for rents accruing or covenants broken while he is assignee. (Armstrong v. Wheeler, 9 Cow., 88 ; Childs v. Clark, 3 Barb. Ch., 52; Astor v. L' Amoreux, 4 Sand., 524; Day v. Swackhammer, 2 Hilt, 4.)

The original lease was between White, the landlord, and Wright and Lunn, the tenants, and was for the term of five years. Wright and Lunn were partners and carried on their "business upon the demised premises. Within a few weeks after this lease was executed, Warren, the defendant’s assignor, bought out Wright’s interest in the business, and went into the same business as a partner with Lunn, on the *61demised premises. It does not appear that there was any assignment from Wright to Warren of the lease, or of his interest in the term created by the lease. All that appeared on that subject is, that Warren informed the landlord that he had bought out Wright’s interest in the business, and wanted the landlord’s consent that he might occupy the premises, and upon his assurance that he would remain there permanently and pay the rent, the landlord required him to sign liis duplicate of the lease which he did, and went into possession and occupied as a partner with Lunn. His name was not inserted in the body of the lease, hut only added to it at the bottom below the other signatures then upon it. There is no pretence that he signed as surety for the original lessees, or either of them, for his signature was attached long after the lease had gone into effect.

Hpon this state of facts I do not see how the covenants in the lease, for the payment of rents, were binding upon Warren, or could have been enforced against him. lie was not occupying alone, hut jointly with one of the original lessees as a partner. Had he been occupying alone the law would have presumed him to be assignee, from the mere fact of his occupancy and payment of rent, the term being unexpired. (Williams v. Woodard, 2 Wend., 487; Provost v. Calder, id., 517 ; Bedford v. Terhune, 30 N. Y., 453.) But it may be doubted whether his oecupany in connection with one of the lessees could raise any presumption of that kind against him. But as mere assignee, as we have already seen, he was in no respect liable for the rent in question. His liability, if it existed at all, must rest upon the ground, that he was in fact and in law, a lessee of the premises, and hound as such for the payment of all the rent during the entire term. Was he such lessee, and did he become vested with the ownership of the term merely by affixing his name to the lease in that way? I think not. He is not named in the body of the lease. The lease is to other persons who had covenanted to pay the rent. The estate of a term of years had vested in the plaintiff and Lunn, and was in them when Warren .put *62his name to the lease. How did the plaintiff become divested of his title ? He did not assign it, so far as the case shows, and for ought that appears it remained in him up to the expiration of the term. There are no words of demise to • Warren, nor of covenant or promise by him; and how can the mere writing his name in blank upon the lease, after it had taken effect, and the rights of other parties become fixed and vested under it, operate either as a demise, or a covenant to pay rent. It is quite certain that it could have no such operation and effect in law. (Chauncey v. Arnold, 24 N. Y., 330; Hibblewhite v. McMorine, 6 Mees. & Welsb., 200.) The principle upon which the assignee of a term created by a lease is liable to the landlord for the rent reserved, without express promise, is, that there is a privity of estate between them. But in order to make a party liable for rent, which another has expressly covenanted to pay, there must be either privity of estate, or an express promise, and here in the case of Warren, there was neither.

He had made no express promise to the plaintiff, so far as the case shows, and none to the landlord other than what the law implies from indorsing his name on the lease in blank. A person occupying under such circumstances, might be liable for use and occupation, to the owner of the term, but not by reason of the covenant in the lease. This, however, should be only for the period of his occupancy. The action is brought and sought to be maintained, upon the theory that Warren became legally bound to the landlord to pay the rent reserved by the lease for the entire term, and that the defendant is liable by virtue of his undertaking with Warren. But all the agreement between the landlord and Warren that appears, was, that he might occupy if he would sign his name to the lease, which was done. By that act he incurred no liability to the landlord, unless it can be construed as constituting him lessee, or assignee of the then existing lease. The verbal negotiation culminated in the signature to the lease, and does not extend beyond that, nor was it designed that it should ; the foundation of the action, therefore, fails entirely.

*63If, however, it should be conceded that by signing the lease under the circumstances Warren became lessee of the premises, the lease then became a new lease, and operated in law as a surrender of the former lease. And upon this principle when Fisk & Titus signed the same lease afterward, the lease to Warren was surrendered and he was in no respect liable for the rent in question, which accrued for the quarter due November 1, 1869, more than a year and a half after both plaintiff and defendant had quit the premises and Fisk & Titus had signed the lease and taken possession. On the other hand, if we were to hold that these parties who signed the lease after it was first executed and took effect, became parties to it as an existing lease, and that it did not thereby become a new lease so as to effect a surrender of the lease as it was before ; then it operated as an alteration of an existing lease and discharged all prior parties thereto who did not consent to the alteration. (Chappell v. Spencer, 23 Barb., 584, and cases there cited.) In this view not only Warren, but the plaintiff, and defendant, and all others in any way connected with the lease, or the premises before that time, were discharged from liability when the lease was altered by the landlord, by making Kelley & Titus parties to it, without the consent of prior parties.

In any view of the case, therefore, the plaintiff has no right of action, and his complaint was properly dismissed.

Judgment affirmed.