
    Edward Kedney, Resp’t, v. John Rohrbach, Appl’t.
    (New York Common Pleas, General Term,
    
    
      Filed December 6, 1886.)
    
    1. Lease—What amounts to a surrender oe.
    Plaintiff was tenant of one M. under a lease for two years; he sublet a part of the demised premises to the defendant, occupying the remainder; subsequently he gave possession of the latter to one L., who was accepted as .a tenant by M., and paid rent to him for the whole premises, including the part sublet, with plaintiff's assent. Held, that the transaction was in effect a surrender by operation of law of the term created by the lease from M. to plaintiff.
    2. Same—Sub-lessee—How discharged from liability to plaintiff.
    Payments for the use of the premises by the defendant, the sub-tenant, . made to L. by direction, of the lessor M., were payments to the latter, and discharged him. He owed nothing to the plaintiff.
    2. Same—When sub-tenant authorized to pay directly to lessor.
    Had the lease not been surrendered, and the plaintiff retained the right to collect the rent from his sub-tenant, yet his default in making payment to liis lessor authorized the sub-tenant to pay directly to the latter, and this without demand or threat of suit, the lessor having the right of entry for such default.
    Appeal from judgment of justice of tenth district court in favor of plaintiff for $173.18, being amount of rent for January, February, March and April, 1886, at $37.50 per month, with interest and costs.
   Daly, J.—It

appears that the plaintiff was the tenant of one Morrell, under a lease for two years from May 1, 1884, of the whole of the premises 474 Fourth avenue, to be used for his market and butcher shop and barber shop; that he sub-let a part of said premises, the barber shop, to the defendant, retaining the other part until January 1, 1886, when he sold out his business to one Levy, and gave the latter possession of the premises he, plaintiff, had occupied. Levy was accepted as tenant by Morrell, and paid rent to the latter for the whole premises, including the barber shop, with the assent of plaintiff. Levy was not in possession as assignee, nor as under-tenant of plaintiff. The effect of this transaction was a surrender by operation of law of the term created by the lease from Morrell to plaintiff. Had there been an under-letting by plaintiff to Levy, the circumstances would have constituted a surrender, because there was a substitution of Levy as tenant in place of plaintiff. “So where the tenant under-let the premises, and the landlord accepted the under-tenant as his tenant, and collected rent from him, which arrangement was assented to by the original tenant, the court held that this amounted to a virtual surrender of the tenant’s interest by law.” Taylor’s Landlord and Tenant, § 514, and cases cited. The case is much stronger where the party accepted as tenant, is not the under-tenant of the lessee, and is not under covenant to pay rent to him, and is not assignee of the lease. The assent of the lessee to the acceptance by the landlord of the new tenant is the principal element of the surrender, and this assent in this case is indisputable. Plaintiff intended that the landlord should collect the whole rent from Levy, and that he, plaintiff, should be discharged therefrom. His own testimony 'shows that he supposed that Levy would be obliged to pay the whole rent, while he could collect and retain the rent of his sub-tenant, the defendant. He swears: “I claim the rent of the barber shop was my profit out of the hire of the store.” To carry out this profitable scheme, however, it was necessary for him to obtain the consent of Levy and of the landlord, and this he neglected to procure. When he substituted Levy in his place, and assented to the collection of the whole rent from him by the landlord, it operated as a surrender, and upon such surrender the sub-tenant became the immediate tenant of the landlord, and hable only to him. See Eten v. Luyster, 60 N. Y., 252. The payments which the defendant, the sub-tenant, made to Levy by the direction of the lessor, Merrill, was. a payment to the latter, and discharged him. He owed nothing to the plaintiff. But even if the lease were not surrendered, and plaintiff had the right to collect the rent from his sub-tenant, yet his default in making payment to his lessor authorized the sub-tenant to pay directly to the latter, and this without even a demand, or any threat of suit, the lessor having the right of re-entry for such default. Peck v. Ingersoll, 7 N. Y., 528. The sub-tenant, the defendant, has paid all the rent now sued for to Levy, by direction of the lessor Morrell, and this is equivalent to paying directly to the. landlord. Plaintiff contends, however, that he was not in default, because Levy had already paid the whole rent to the lessor, and collected from the sub-tenant for his own benefit. But it could be contended with equal justice, that as defendant was so directed to pay his rent to Levy, before the latter made any payments whatever to the lessor, that Levy merely received it from the defendant, to make up the rent due the lessor. The rent for January, 1886, was certainly paid by defendant to Levy, before the latter paid the full rent to the lessor, as the receipts show, and there was a default then if the lease to plaintiff was outstanding, for the rent was payable monthly in advance, and Levy did not pay until the 12th. The succeeding rents were paid under the lessor’s general direction given in January.

The judgment should be reversed with costs. A new trial will not be ordered, as plaintiff’s case seems without merit. If he desires further litigation, there is nothing to prevent his bringing another action.

Larremore, Oh. J., and Van JIoesen, J., concur.  