Hamilton v. Read

13 Daly 436

Opinion

Larremore, Ch. J.

[After stating the facts as above].— The plea of merger cannot be sustained. It is not favored in law, and rests mainly upon the intention of the parties.

The assignment of December 14th, 1882, created a new estate at an advanced rent, and the assignee of such estate was entitled to its benefits (Gansen v. Tifft, 71 N. Y. 48). While the lease to Kieff was outstanding the sureties upon it were liable according to its terms. Townsend must be simply regarded as a party subrogated in interest to Kieff, and the fact that he was the owner in fee could not deprive him of the rights acquired by the assignment of December 14th, 1882.

The judgment should be affirmed, with costs.

Allen and Bookstaveb, JJ., concurred.

Judgment affirmed, with costs.