
    Henry L. Sayles, Appellant, v. Leonard R. Kerr, Respondent.
    
      Landlord, and tenant — the liability for the rent of an assignee in possession arises out of privity of estate — it is not affected by a covenant not to assign.
    
    An assignee óf a lease, who enters under an "assignment of it to him, becomes . liable, by reason of the privity of estate created by his taking such possession, to pay the rent to the landlord.
    It is immaterial in such a case that the lease .contains a provision that the lessee * shall not assign the lease or sub-let the' premises without the consent of the ■ lessor, or that the lessor refuses to recognize the assignee as tenant from a fear ■ that such recognition would .release the lessee. -
    Appeal by the plaintiff, Henry. L. Sayles, from a judgment of the Superior Court of the city of Hew York in favor of the defendant, entered in the office of the clerk of said court on the 9th day of April, 1895, upon the report of a referee.
    
      Mark G. Holstein, for the appellant.
    
      Samuel G. Adams, for the respondent.
   Rumsey, J.:

The plaintiff occupied for a short time the Putnam House in this city which; was' owned by.the defendant. On the 2d of June, 1893, the'plaintiff was .put out by summary, proceedings, and at the time of. his leaving lie left in- the house, pursuant to an. agreement with the; defendant,-a considerable quantity of liquors, and other property,, and "he -brought this action for the purpose of recovering the, purchase price thereof.. • •

The defendant,, among other defenses, sets up as a counterclaim, that he was the owner of the Putnam House arid had leased it to Alonzo and Augustus W. Foster,, and that about the 14th of April, 1893, the two Fosters being then in possession of the premises, assigned the lease and their interest in it to the plaintiff, who entered under the assignment and remained' there until June 2, 1893, and that the defendant had failed to pay the rent of said premises for the month of Flay, which fell due on; the thirty-first day of that month, and the defendant demanded judgment for the amount of his counterclaim.

The referee found the value of the goods which had been delivered,'and that the defendant had not paid for them. He found the fact of 'the lease as alleged in the answer; its assignment to the plaintiff; that the plaintiff remained there until the second of J une, and that he did not pay the rent for the month of May or any qiart thereof, and as a conclusion of law he found that the plaintiff was indebted to the defendant for the difference between the value of the property which the plaintiff had sold to the defendant and the amount of rent for the month, which was $1,033.29, and for that amount, with interest, he ordered judgment, which was accordingly-entered, and from that judgment the plaintiff takes this appeal.

The single question presented is whether the plaintiff, who became the assignee of the lease of the premises of which the defendant was the lessor, was liable to pay the rent during the time for-which he was in actual possession of the premises under the assignment. That question must be answered in the affirmative. The rule is well settled that the assignee of the lease who enters under the assignment becomes liable to pay the rent, and that liability arises by reason of the privity of the estate which is created because of his taking'possession under the assignment. (Frank v. N. Y., L. E. & W. R. R. Co., 122 N. Y. 197; Dolph v. White, 12 id. 296, 300.) It seems that this lease contained a provision that the lessee should not assign or sublet without the consent of the lessor, and the plaintiff insists that that covenant being in the lease no privity arose between himself and the landlord, because the landlord refused to recognize him as tenant lest that should release the lessees. But that fact is of no importance. The liability to pay rent arose- by operation of law and from the fact of possession as assignee under the lease, and as long as that existed the liability to pay rent followed as a necessary incident. (Blake v. Sanderson, 1 Gray, 332.)

Judgment must be affirmed, with costs.

Yabt Bbunt, P. J., Barrett, Williams and Pattebsok, JJ., concurred.

Judgment affirmed, with costs.  