Schenkel v. Lischinsky

45 Misc. 423, 90 N.Y.S. 300

Opinion

Fitzgerald, J.

The agreement in question is not an agreement to assign a lease, it is an agreement to execute a sublease. It distinctly provides that the instrument which defendant contracts to execute and which plaintiff contracts to accept, is to convey by its terms to the lessee, a lesser interest than is given to the lessor by the covenants of the original lease. In other words it provides for a reversion whereas an assignment Avould constitute an absolute transfer to the assignee of the lessor’s entire interest in the demised premises. Ganson v. Tifft, 71 N. Y. 48; Constantine v. Wake, 1 Sweeney, 246.

This agreement was an enforceable one; it was not a mere agreement to enter into a lease but all of the terms and conditions of the proposed lease are definitely set forth, and it is in these respects distinguishable from Geer v. Clark, 83 App. Div. 292. There was no prohibition from subleasing in the original lease, and the consent of the original lessor was unnecessary as no requirement to procure it is provided for in the agreement under consideration. The plaintiff must be held to the written contract he entered into, and the judgment appealed from must be reversed.

Freedman, P. J., and Bischoff, J., concur.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.