Dassori v. Zarek

71 A.D. 538, 75 N.Y.S. 841

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1902
• Status: Published

Opinion

Jenks, J.:

The assignee of a lease is liable for the rent only for the period that he is in possession, and if he assign his term and gó out, his liability is thereupon determined. (Durand v. Curtis, 57 N. Y. 7; Childs v. Clark, 3 Barb. Ch. 52, 60; Clark v. Aldrich, 4 App. Div. 523.) This rule is subject to the exception that .if the assignmeñt to the assignee contain his express contract or covenant to pay the rent or to perform the covenants of the lease, which embrace a covenant to pay the rent, then he may be held upon his contract or covenant despite his own subsequent assignment.

The learned counsel for the appellant insists that the assignment to the defendant did contain a covenant on his part which establishes his liability. After the hahendum clause the instrument reads, “ Subject, nevertheless, to the rents, covenants, conditions and provisions therein also mentioned-.” The reference is to the original lease, which contained a covenant for the payment of rent. This precise question was decided adversely to the appellant in Wolveridge v. Steward (1 Cromp. & M. 644), and the reasoning of the court, per Denman, C. J., is. conclusive and exhaustive. (See, too, 1 McAdam Landl. & Ten. [3d ed.] § 240.)

The judgment must be affirmed, with costs.

All concurred.

Judgment of the Municipal Court affirmed, with costs.