Gerken v. Smith

City of New York Municipal Court

Gerken v. Smith

11 N.Y.S. 685, 34 N.Y. St. Rep. 59, 1890 N.Y. Misc. LEXIS 2301

CourtCity of New York Municipal Court

DecidedDecember 1, 1890

StatusPublished

Cited by1 cases

This text of 11 N.Y.S. 685 (Gerken v. Smith) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gerken v. Smith, 11 N.Y.S. 685, 34 N.Y. St. Rep. 59, 1890 N.Y. Misc. LEXIS 2301 (N.Y. Super. Ct. 1890).

Pincite

Opinion

Per Curiam.

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.

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Per Curiam.

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.

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Bluebook (online)

11 N.Y.S. 685, 34 N.Y. St. Rep. 59, 1890 N.Y. Misc. LEXIS 2301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerken-v-smith-nynyccityct-1890.

Opinion

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