Jennings v. Alexander

Brady, J. — There was neither privity of estate nor privity^f contract between tbe plaintiff or bis assignor and tbe defendant, and no action can be maintained by tbe lessor against an under-tenant upon the lessee’s covenant to pay rent. McFarlan v. Watson, 3 Comstock, 286. And no action to recover for tbe use and occupation of premises can be maintained, unless there is an agreement for tbe use of tbe premises, express or implied, between tbe plaintiff or bis assignor and tbe defendant. 1 R. S. 748, § 26 ; Wood v. Wilcox, 1 Denio, 38 ; Bancroft and wife v. Wardwell, 13 Johns. R. 489 ; Hall v. Southmayd, 15 Barb. 32. And such agreement not being by deed, if a certain rent be reserved by it, it may be used as evidence of tbe amount of recovery. 1 R. S., § 26, supra ; Williams v. Sherman, 7 Wend. 109. The defendant entered under O. R. Burnbam, and not under tbe plaintiff, and it was necessary to show some promise, express or implied, to pay tbe rent to tbe plaintiff by tbe defendant, with tbe assent of bis lessor. In that case the action could be maintained. McFarlan v. Watson, supra. There is, however, no proof in this case that tbe lessor of tbe defendant ever assented to any such appropriation of tbe rent; but there is proof that 0. S. Roe, tbe plaintiff’s assignor, and owner of tbe fee, expressly declined to accept tbe defendant as his tenant. He so states himself, and bis statements are. conclusive on that subject. Tbe [156] defendant would be excused from payment to bis lessor by proof of payment to tbe owner (Peck v. Ingersoll, 3 Selden’s Rep. 525), for bis own protection; but tbe evidence bere does not show a state of facts to wbicb that rule would be applicable. A mere promise by an under-tenant to pay the original lessor, without tbe assent of his landlord, even if unqualified, would not be sufficient to bind him; but tbe proof in this case is of an offer of about $75, and, as it would seem, by way of compromise. Tbe respondent places bis right to recover on what be designates tbe attornment of tbe defendant to tbe plaintiff’s assignor, and tbe offer already mentioned. This position cannot be maintained. As between tbe plaintiff’s assignor and tbe lessee of bis grantor, there was no necessity for any attornment, tbe land pfving been conveyed while occupied by such lessee (1 Rev. Stat. 739, § 146) ; but tbe attornment by the defendant to tbe plaintiff’s assignor, if proved, would have been void. They were strangers, and tbe defendant’s landlord did not consent. 1 Rev. Stat. 744, § 3. There is, however, no evidence to show that tbe defendant attorned to tbe plaintiff’s assignor, and nothing in tbe case from wbicb any inference in respect thereto can be drawn, except the offer referred to. That, for tbe reasons assigned, is insufficient for any purpose in this action. I do not deem it necessary to consider tbe proof of payment by tbe defendant to bis landlord was such, as tbe conclusion is, from the views presented, that the plaintiff was not entitled to a judgment on the evidence produced. Tbe judgment of the court below must be reversed.