Manley v. Berman

MacLean, J. The plaintiff brought this action to recover rent for certain lofts in No. 230 West Broadway for the month of November, 1907, which by the terms of the lease the defendants, as lessees, had expressly covenanted to pay in advance, and likewise for Croton water charges, to pay their proportion of which the defendants had also expressly covenanted, as they also had expressly covenanted “ to promptly comply with all orders, ordinances and regulations of the Departments of the City or State Governments, * * * applicable to lessee’s use of said premises, at the cost of lessee.” After certain denials and admissions in their answer, the defendants alleged that, some time prior to the month of November, 1907, they assigned the lease to the firm of Schwartz, Freed & Speyer; that the plaintiff had notice thereof and afterward accepted rent from said firm, agreeing to look only to said firm for the rent of the premises, and also accepted a surrender thereof from the defendants. For a second defense the defendants alleged that, prior to the 1st of November, 1907, the premises became untenantable and they were evicted by the building department, under an order of the Supreme Court condemning the building as unsafe. Judgment was rendered in favor of the defendants, and therefrom the plaintiff brings this appeal. Notwithstanding the assignment by the defendants of the lease herein, even with the consent of the landlord and the acceptance thereafter of rent from the firm of Schwartz, Freed & Speyer, the defendants still remained liable upon their express covenant to pay rent (Ranger v. Bacon, 3 Misc. Rep. 95; Wallace v. Dinniny, 11 id. 317, 319), there being no evidence herein of a determination of their estate upon a sufficient consideration or by the re-entry of their landlord. Upon their express covenant to comply with the [93] orders of the city government they may not claim eviction and so no liability (Markham v. David Stevenson Brewing Co., 104 App, Div. 420) ; nor may they claim surrender and acceptance by leaving the keys with the stenographer in the office of the plaintiff so as to defeat the claim of the plaintiff, because the claim for rent was due and owing upward of two weeks prior to either alleged eviction or surrender and acceptance. Cheesebrough v. Lieber, 18 Misc. Rep. 459; Stern v. Murphy, 102 N. Y. Supp. 797, 798. The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event. Gildersleeve and Seabury, JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event.