Schlesinger v. Perper

70 Misc. 250, 126 N.Y.S. 731

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 15, 1911
• Status: Published

Opinion

Giegerich, J.

I think the plaintiff sufficiently proved the -assignment of the lease to the defendant and her occupation of the premises thereunder. By such assignment and occupation the defendant became liable to the plaintiff for rent for the period of her occupation (Sayles v. Kerr, 38 N. Y. Supp. 880; Dassori v. Zarek, 75 id. 841); and the only question in the case is whether the plaintiff, by prosecuting an action against his lessee to judgment, has precluded himself from the right to sue.the assignee for rent for the same period for which he had previously recovered judgment 'against his lessee. The contrary appears to have been held as to the commencement' of an action, merely, in People v. German Bank (In re Bettinger), 126 App. Div. 231; and there seems to be no reason for a different rule where the action was prosecuted to judgment, so long as the judgment remained unsatisfied, which is the situation here.

The judgment should, therefore, be affirmed, with costs.

Beady, J., concurs; Gavegan, J., concurs in the result.

Judgment affirmed.