Stern v. Florence Sewing Machine Co.

Mullin, P. J. The assignee of a lease is not liable for rent of the demised premises except for the time he occupies them, and may at any time terminate his liability for rent by assigning the lease (2 Platt on Leases, 416 ; Taylor on Landlord and Tenant, sec. 444; Woodfall L. and T. [edition of 1871], 208, 369, 681). The defendant assigned the lease in question to one Ames on the 3d October, 1871, and abandoned possession. Under the authorities referred to, the defendant was no longer liable for the rent; but the referee decides, as matter of law, that the defendant expressly agreed to assume the liabilities of Morse & Oo. under the lease, and the payment of the rent was one of those obligations. This conclusion of the referee is based upon the evidence of the plaintiff, given on his own behalf on the trial, which evidence is as follows, viz.: “ Folts ” (a duly authorized agent of the, defendant) “ asked me if I would be willing to assign the lease to defendant. I" replied that I would, provided I got my pay promptly, and they assumed all the responsibilities of J. J. Morse & Co., and paid me my rent promptly, which Folts agreed to do, [483] and thereupon I executed the consent on the lease. Folts said the company was more responsible than J. J. Morse & Co., and would pay rent more punctually and become responsible for it.” It cannot be claimed, upon this evidence, that Folts was intending in this interview with the plaintiff to abandon the written lease, and to enter into a verbal one for any period of time. Folts desired plaintiffs’ consent to the assignment oí the written lease, and his consent was given. The old lease was not varied in the slightest particular. The plaintiffs’ consent was given, upon the condition that defendant would pay the rent promptly and assume the obligations of J. J. Morse & Co., and Folts, representing the defendant, accepted the condition. By taking an assignment of the lease, the defendant assumed the obligations imposed by the lease on J. J. Morse & Co., and one of these was the payment of the rent. FTo parol agreement was necessary to charge the defendant with these obligations, and the agreement to pay promptly did not hasten or retard the time of payment specified in the lease. The consent of plaintiff was not necessary to enable J. J. Morse & Co. to assign the lease to the defendant, there being no prohibition in the lease against assignment. The agreement of the defendant to pay rent, if such an agreement was in fact made, was without consideration to support it. But it seems to me legally impossible to construe what passed between plaintiff and Folts into a new and distinct agreement to rent the premises, and to pay rent otherwise than is specified in the written lease. The plaintiff having agreed to heat the premises rented to the defendant, and having violated that agreement, the defendant Was entitled to- recover by way of counter-claim such damages as it showed itself entitled to. But the defendant failed to furnish to the referee any data to enable him to ascertain the amount of damages to which it claimed to be entitled. These remarks apply to the other claims, on the part of the [484] defendant; but, in the view we take of this case, it is unnecessary to allude to them. The building was not in such a dilapidated condition, or so out of repair, as to justify the defendant in abandoning the premises. The judgment is reversed and a new trial granted before another referee, costs to abide event. Talcott and Smith, JJ., concurred.