
    Sebastian Sommer, as Administrator, Respondent, v. The Bavarian Star Brewing Co., Appellant.
    (New York Common Pleas—General Term,
    May, 1894.)
    Co-lessors who have transferred their interests to the tenant are not necessary parties to an action for rent under a lease.
    In an action upon a lease under seal with a covenant for quiet enjoyment, brought by the lessor or his representative for the recovery of rent, the lessee is precluded from challenging the plaintiff’s title.
    An allegation in the complaint in an action for rent upon a demise of a dower interest that the premises were let subject to the dower right of the plaintiff, without further allegations to show whether such right is inchoate or consummate, is an insufficient allegation of interest in the plaintiff. i
    Appeal from interlocutory judgment overruling demurrer to complaint.
    Action by administrator for rent accruing in lifetime of intestate upon a lease purporting to demise her interest as dowress.
    Other necessary facts appear in the opinion.
    
      George H. Yeaman, for appellant.
    
      Jacob F. Miller, for respondent.
   Pryor, J.

The position that the complaint discloses a defect of parties is manifestly untenable. The allegation that the interests of the other lessors had been transferred to the defendant left but the two parties in controversy, plaintiff and defendant. It was no more necessary to join the transferors in the action than to unite any assignor with the assignee in an action on the assigned claim. Apparently all the parties affected are before the court, and that is enough against the demurrer.

Estoppel out of the way, we are of opinion that, as a suit for rent upon a demise of a dower interest, the action is not to be upheld. Only by implication does it appear by the complaint that plaintiff’s intestate had a dower interest in the premises; thus, that they were let and conveyed “ subject to the dower right of Biadema Sommer.” "Whether her right was inchoate or consummate is not to he collected from the pleadings, and, if inchoate only, her interest was incapable of assignment. In Mutual Life Ins. Co. v. Shipman, 119 N. Y. 324; Pope v. Mead, 99 id. 201, and Payne v. Becker, 87 id. 153, the right was consummate; but here it is not apparent that the husband does not still live, and, if so, the intestate had nothing to demise. vi termini alease imports a thing let, and a subject-matter susceptible of grant, no less than capable parties, is indispensable to a demise. Bouv. Inst. 254. The statement in the complaint is an insufficient allegation of interest in the intestate. Clark v. Dillon, 97 N. Y. 370; Valentine v. Lunt, 115 id. 496, 501.

Nevertheless, the action being upon a lease under seal, with a covenant for quiet enjoyment, and by lessor against lessee for the recovery of rent, the defendant is -precluded, by the familiar estoppel, from challenging plaintiffs title. Mayor, etc., v. Sonneborn, 113 N. Y. 423; McAdam Landl. & Ten. 422.

As the action may be maintained for some rent, the demurrer is untenable. The question of the proportion of rent to which the intestate was entitled is not now for determination.

The judgment should be affirmed, with costs, with leave to plead over on payment of costs.

Bischoff and Giegerich, JJ., concur.

Judgment affirmed, with costs, with leave to plead over on payment of costs.  