Stoppani v. Richard

1 Hilt. 509

• Court: New York Court of Common Pleas
• Decided: December 15, 1857
• Status: Published

Opinion

Daly, J.

— Schoenfeld was the assignee of the lessee Nathan, and as long as he continued such assignee he was liable, by privity of estate, for the rent, to the lessor Stoppani; but, by assigning to Weinrich, he discharged himself from all future liability for rent under the lease. Lekeux v. Nash, 2 Strange, 1221 ; Taylor v. Shum, 1 Bos. & Pul. 21. Weinrich was, then, in privity of estate with 'the lessor Stoppani, and liable to him for the rent. Nathan, the lessee, continued liable upon his personal covenant in the lease ; Cottenger, upon his covenant that Nathan would perform the contracts in the lease ; and Weinrich, as the one in privity of estate with the lessor. All these parties remained liable for the payment of the rent, but the liability of Schoenfeld was at an end. Schoenfeld having released himself from the payment of rent by the assignment, there was nothing to support an agreement by Weinrich to pay the rent to Schoenfeldfor, by the operation of the assignment, Weinrich became liable to pay it to Stoppani, the lessor. Schoenfeld was discharged from all tbe covenants in tbe lease. Weinrieb was not bis under-tenant or lessee, but the assignee of tbe term. Sucb an agreement, tbere-fore, would be without consideration and void, and consequently any agreement by Bichard, the defendant, to be responsible to Schoenfeld if Weinricb should make default, was equally void and without consideration. If Schoenfeld acquired nothing by that agreement, he could transmit nothing by assigning it to the plaintiff. Neither he nor the plaintiff could maintain any action upon it, and the general term, therefore, did right to reverse the judgment.

The case of Jackson v. Post (17 Johns. 479), to which the appellant has referred us, has no application. The action there was by the lessee against the assignee, upon a special covenant ii^gie assignment, by the assignee, to pay the rent to the lessor; and as a lessee continues always liable upon the covenants in the lease after he has assigned, it/there was a sufficient consideration to support such a covenant'. If Schoenfeld had entered into such an agreement in the assignment from Nathan, the lessee, the two cases- would be analogous; but such an agreement by Schoenfeld with his assignee, or with a surety for his assignee, is a very different case. The judgment of the general term should be affirmed.

Judgment affirmed.