Romaine v. Sweet

Rumset, J.: This action, was brought against the defendants’ testator in his-lifetime to recover the. last installment of rent due upon a lease made by the plaintiff to persons other than the defendants’, testator, for the payment of which he had become surety. The lease was made' on the 23d of April, 1891, for one year commencing on the first of May, at the yearly rental of $2,500, of which $625 was paid when the lease was made, $1,250 was to be paid on the 1st of August, 1891, and the remainder, $625, on the 1st of November, 1891. The lessees went into possession under the lease of the property, which was a hotel at Asbury Park, New Jersey. The first installment of rent was paid. Before the second became due, the landlord, having occasion to borrow a sum of money from the Harlem River Bank, made an assignment of the second installment of the-rent to that bank as collateral security for the loan. With respect to the assignment it is claimed by the defendants that it passed to the bank the entire interest in the lease, so that. Romaine had no other interest or rights in it, and for that reason he could not maintain this action. By the transfer Romaine assigned, transferred and set over to the assignee to secure the payment of $1,000 lent by the assignee to him, the lease in question, with the provision that “ the said William G. Romaine does hereby empower and constitute him (the assignee), his certain agent or attorney, to collect the second instalment óf rent amounting to $1,250, and after paying or deducting the said One Thousand Dollars therefrom render the surplus unto the said William G. Romaine, his executors, [615] administrators or assigns.” It is not disputed that the amount due from Romaine to the bank was $500, and not $1,000. The court below construed that assignment as a transfer of the second installment of rent as collateral security for the loan, and held that it did not operate as an assignment of the subsequent installment of rent, so as to prevent the landlord from bringing an action to recover it. " In that conclusion we concur. The assignment, being given as security for the debt, operated only as a mortgage upon the second installment of the rent, rather than as an absolute transfer of the whole lease. After default had been made in the payment of the second installment of rent, the assignee gave a power of attorney to Romaine to collect it, in pursuance of which he caused an action to be brought against Orr to recover it. That action was subsequently settled by the payment to the bank of $500, being the amount due to it, and , by the payment to its attorneys óf a certain sum which it is not material to consider here, and after that settlement the bank- gave to Orr, the defendant, a general release in the usual form, followed by the words “ especially from all claim said bank may have under and by virtue of a certain lease or assignment made by one William Gr. Romaine, of which said bank are the owners, and of a certain payment of $1,250, due August 1st, 1891, under a certain lease made on or about April 23d, 1891,” (describing it) • “ and for which payment said James Orr became surety.” The defendants claimed that this was an absolute release to Orr of all liability as surety upon this lease, and that after it was given his liability ceased not only as to the $1,250, but as to the subsequent installment. With this contention we do not agree. It is the settled rule that where there is a general release, followed by a particular recital, the paper will be construed to apply solely to the particular matter. (Jackson v. Stackhouse, 1 Cow. 122; 2 Williams’ Saunders, 48, note F.) That was the rule which the court below properly applied in this case. Orr had notice of the assignment to the bank and knew, therefore, that it only took the second installment of rent as collateral security for the payment of its note, and knowing that fact he must also have known that the bank could release nothing more than what it had acquired from Romaine. The court below was correct, therefore, in concluding that the lease did [616] not operate upon the last installment of rent, which accordingly still belonged to the plaintiff, In addition to these two. defenses the defendants also insist that, the landlord being bound by the lease to make repairs to the premises, refused tó do so, so that for that reason the defendants were-forced to abandon them on the second of September, and they claim that by the terms of the lease they were released from any further-liability for rent under the clause which provided that, if the buildings should be so injured by the elements or any other cause so as. to be untenantable and unfit for occupancy, the tenants should not be liable to pay rent for the time after such destruction or injury, and might thereupon quit and surrender possession of the premises. ‘It was shown that the lessees abandoned the premises oh the 2d of September, 1890. The court held that if the premises became untenantable because of the failure of the landlord to comply with his contract and put them in repair so that a condition arose which made it necessary for the tenants to remove and they did so, the plaintiff must fail in his action. Finally, the question was submitted to the jury in this form: “ You must determine whether, on or about the 1st day of September, 1891, the hotel in- question was. without fault of the tenants in a condition so as to make it untenantable and unfit for occupancy and by reason thereof the tenants left, and surrendered it. If yea your verdict will be for the defendant if nay your verdict will be for the plaintiff.” Ho exception was. taken to that part of the charge. The jury found a verdict for the-plaintiff, and under the charge they must have found that the premises had not become in such a condition that they were untenantable,, and for that reason the defendants fail also in that portion of their-defense. For these reasons we conclude that the judgment and order were: correct and must be affirmed,' with costs to the respondent. Van Brunt, P. J., O’Brien, Ingraham and Hatch, J J., coneurred- Judgment and order affirmed, with costs. Note;— The rest of the cases of this term will he found in the next volume 58 App. Div.— [Rep.