Holtermann v. Wenzel

171 A.D. 928, 155 N.Y.S. 1114

Opinion

Once a lessor dispenses with the condition against assignment that condition is gone forever. (Murray v. Harway, 56 N. Y. 337.) Plaintiff’s consent without qualification to the assignment from the lessee to defendant, therefore, dispensed with and virtually extinguished the condition against future assignment. Accordingly defendant, being free to assign, by his transfer to Kain and quitting the premises with plaintiff’s knowledge, followed by plaintiff’s taking Kain’s payments of rent, terminated defendant’s privity of estate. Having never himself entered into any covenant to pay rent defendant’s liability ceased when he thus assigned the lease and went out of possession. (Dassori v. Zarek, 71 App. Div. 538.) The judgment of the County Court of Kings county is, therefore, reversed, with costs to defendant, and under the Code of Civil Procedure (§§ 1317, 1345) this court hereby renders judgment for defendant against plaintiff, with costs. Jenks, P. J., Carr, Mills, Rich and Putnam, JJ., concurred.