Lusk Operating Co. v. Gelardin

Memorandum Per Curiam. As between Horta and Gelardin, tenant and subtenant, there was, it appears, a formal technical [820] reservation of a reversion in the sublease sufficient to endow it with the character which the parties signified in entitling it “ Sublease (Stewart v. Long Island R. R. Co., 102 N. Y. 601; Post v. Kearney, 2 N. Y. 394.) The Lusk Operating Company, Inc., the owner-landlord, in whose main lease to-Horta it was provided that “ The tenant * * * will not assign this lease or. underlet the leased premises, or any part thereof, without landlord’s written agreement ” was entitled to rely upon such reservation" as establishing the relation between the parties. In addition clause 14 of the main lease, and the lease to Gelardin of another apartment in the same building, provided: “ If this lease is assigned by the tenant, or the leased premises are under-let or occupied by anybody other than the tenant, the landlord may collect rent from the assignee, under-tenant or occupant, and apply the net amount collected to the.rent herein reserved, and no such collection shall be deemed a waiver of the covenant herein against assignment and underletting, or the acceptance of such assignee, under-tenant or occupant as tenant, or a release of the tenant from further performance of the covenants herein contained.” .Under the circumstances, the landlord’s acceptance from Gelardin of rent due it from Horta pursuant to letters later exchanged between the parties did not change the sublease into an assignment (Peck v. Ingersoll, 7 N. Y. 528; Sanford v. Ambassador Restaurant Co., Inc., 139 Misc. 3). The elements of estoppel not being established (3 Pomeroy on Equity Jurisprudence [5th ed.], §§ 804r-805), the landlord was not estopped from showing the true relationship. The final order should be reversed, with $30 costs, and final order directed for landlord as prayed for in petition, with costs.