Holtermann v. Wenzel

Appellate Division of the Supreme Court of New York

Holtermann v. Wenzel

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 15, 1915

StatusPublished

This text of 171 A.D. 928 (Holtermann v. Wenzel) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Holtermann v. Wenzel, 171 A.D. 928, 155 N.Y.S. 1114 (N.Y. Ct. App. 1915).

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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.

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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.

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Bluebook (online)

171 A.D. 928, 155 N.Y.S. 1114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holtermann-v-wenzel-nyappdiv-1915.

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