Margolius v. Fleming

Per Curiam. This is an action to recover rent for the month of October, 1927, on a lease of premises in Highland Park. It is against Fleming, as lessee, against Field, as surety, for the performance of the conditions of the lease by Field Eestaurant, Incorporated, and against Marthin, upon his or her assumption of the obligation of the lease. The lease was made May 1st, 1926, between the plaintiff and Fleming for a period of five years. On May 28th, 1927, Fleming sold his interest in the business conducted therein to Field Eestaurant, Incorporated, and the plaintiff consented to the transfer of the lease. The obligations of the lease were assumed by the Field Eestaurant, Incorporated, and on the same day Field became surety to the plaintiff for the performance of the covenants of the lease by Field Eestaurant,' Incorporated. On October 1st, 1927, Field Eestaurant, Incorporated, transferred its interest in the [1034] lease to Marthin, and on the same date Marthin assumed to perform its obligations and conditions. The lease contained a provision against assignment or the subletting of the premises without the consent of the plaintiff. On the foregoing state of facts the court gave judgment in favor of the plaintiff against Marthin but in favor of the defendants Fleming and Field. The reasons for the conclusion reached by the trial court are not given and no brief is filed for the respondent. We think the latter judgment was wrong. Fleming was liable as lessee, and assignment of the lease to Field Restaurant, Incorporated, did not of itself, in the absence of affirmative evidence of a surrender (of which there was none), relieve him from the obligations in the lease. Arlington Realty Co. v. Berkow, 128 Atl. Rep. 605. Field was liable by reason of his undertaking as guarantor of the performance of the conditions of the lease by Field Restaurant, Incorporated. The contract was eo-temporaneous with the assumption of the lease by the company and upon a sufficient consideration. By its terms it agreed to pay on default. In this situation the cases of Wilkinson-Gaddis Co. v. Van Riper, 63 N. J. L. 394, and Pfeiffer v. Crossley, 91 Id. 433, are controlling. The judgment is reversed.