
    Sergeant V. Bagley v. Joseph G. Freeman.
    An assignee of a lease is liable to tbe original landlord, only in respect of his possession, and then only in case bo is assignee of the whole term.
    A general assignment for tho benefit of creditors, which does not specifically mention the lease, does not, of itself, make tho assignee liable for rent as assignee of the loase.
    His entry upon and occupation of the demised premises are sufficient ’¡¡rima facie to charge him with the rent as assignee; but ho may rebut the presumption arising from such occupation, and prove that he refused to take an assignment of the lease.
    Appeal by defendant from a judgment of tbe First District Court. This was an action to recover rent. In 1854, tbe plaintiff leased to- one Andrew J. Powers tbe bouse No. 153 Third avenue,. New York city, for five years. In May, 1854, Powers failed, and made a general assignment to the defendant for tbe benefit of his creditors. His lease was not specifically mentioned in this assignment. Tbe defendant thereupon, as assignee, took possession of the demised premises, which be occupied for about three weeks. At the expiration of that time he sold the debtor’s stock, &c., to one Andrew I. Gale, who took possession of the store, and remained there about five weeks longer, when the plaintiff retook possession of the premises. This action was brought to recover the rent for the two months during which the store was occupied by the defendant, and by Gale, who was placed in possession by the defendant.
    On the trial, the defendant offered to show that the original tenant, Powers, offered him an assignment of the lease, which he refused to accept, but the evidence was objected to and excluded. Judgment having been rendered for the plaintiff, for the amount claimed, the defendant appealed.
    
      J. Aitken, for the appellant,
    cited Child v. Ciarle, 8 Barb. Oh. B. 52; Marlin v. Blade, 9 Paige, 90; Armstrong v. Wheeler, 9 Cow. 90.
    
      Niles and Bagley, for the respondent.
    If an executor or receiver enter into the possession of demised premises, or receives rent from an under tenant, he is himself liable for the rent to the original lessor. Provost v. Calder, 21 Wend. 517; In the matter of Galloxvay, 21 Wend. 32; and see Martin v. Blade, 9 Paige, 641; Thomas v. Pendleton, 7 Taunt. 206 ; Class-v. Hume, 1 Ryan & M. 207. So one who takes a conveyance of the whole term, or undivided part of any portion of the premises, is an assignee, and liable for a proportionate amount of the rent. Child v. Clarlc, 3 Barb. Oh. R. 52.
   Bkady, J. —

It Avas admitted on the trial,, that in the assignment, Avhich was general, “ there Avas nothing specifically mentioning the lease ” under Avhich the plaintiff claimed rent from the defendant, as assignee. The defendant offered to prove, by the assignor, that he, the assignor, offered the lease, under the assignment, to the defendant, who refused to accept it. The plaintiff objected to the proof — the objection Avas sustained, and tbe defendant excepted. If tbe justice erred in rejecting tbe proof, then tbe judgment is erroneous, and must be reversed. Tbe lease to tbe assignor, Powers, was for five years, from tbe 1st May, 1854; tbe occupancy of tbe defendant was for about three weeks, commencing about 20tb May, 1854, and tbe rent reserved by tbe lease was payable quarterly.

An assignee is liable only in respect of bis possession; be bears the burthen while be enjoys tbe benefit; but if the whole term of years is not passed over to him, if a day be reserved by tbe lessee, be is not liable to tbe landlord at all. He is an under tenant. Taylor’s Landlord & Tenant, 218, and numerous cases cited. He must, therefore, be tbe assignee of tbe whole term. It is true that it is not requisite to charge him to show Ta actual entry on the land (Walton v. Cronly, 14 Wend. 63), where he accepts an interest under tbe lease, and tbe execution )f a lease by tbe assignor, and possession by the assignee are sufficient prima fade to charge him as assignee, yet, he may prove that be is not an assignee. Williams v. Woodward, 2 Wend. 487. A lessor cannot maintain an action for arrears of rent against a party occupying premises charging him as as-signee, when, in fact, be never bad an assignment of tbe lease. Quackenboss v. Clark, 12 Wend. R. 555. Did tbe proof, in this case, show an assignment of the lease ? It was admitted that tbe lease was not mentioned in tbe assignment, which left the question open to investigation, although tbe possession by tbe defendant was, as we have said, sufficient prima facie. He proposed to show that he was not tbe assignee of tbe lease, having refused to accept it under the assignment, and tbe justice erred in not admitting tbe proof, Williams v. Woodward, supra. The justice, by rejecting the testimony, assumed that tbe defendant was tbe assignee, notwithstanding tbe admission before him. There is nothing to support such an assumption, unless by construction of tbe assignment read in evidence, which is not before us. The defendant was not bound to accept tbe lease, because that would have imposed upon him a personal obligation distinct from bis trust. His representative character could not affect tbe landlord’s right to bold him by privity of estate, on all the covenants running with the land. If the fact offered to be shown was proved, the defendant would not be liable to the lessor. He was a tenant at sufferance of the lessee, and clearly not liable to any one else. There are other considerations why he should not, on such proof, be regarded as an assignee, which it is unnecessary to state. It appears, on authority, that the proof offered was relevant, and should have been admitted. The justice erred, therefore, and the judgment must be reversed.

Judgment reversed.  