
    Sarah Ruth Mann, Respondent, v. Ferdinand Munch Brewery, Appellant.
    First Department,
    July 10, 1916.
    Landlord and tenant — effect of eviction toy summary proceedings upon liability of tenant to pay rent accruing in future—when evicted tenant liable for failure to perform covenants.
    An eviction by summary proceedings terminates the liability of a tenant to pay rent accruing in the future.
    A tenant evicted by summary proceedings is not thereafter liable in damages for failure to perform the covenants contained in the lease, unless there is-an express provision permitting the landlord to re-enter, lease the property and hold the tenant liable for the difference between the amount received and the amount to be paid.
    A party in possession of leased property with the consent of the tenant who had been evicted by summary proceedings, cannot be held liable for future rent in the absence of proof that the lease was assigned to it or that it agreed to perform any of the covenants contained in the lease other than to pay rent.
    Smith and Scott, JJ., dissented, with opinion.
    Appeal by the defendant, Ferdinand Munch Brewery, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of January, 1916, upon the verdict of a jury rendered by direction of the court after a single question had been submitted to the jury and its verdict thereon taken, and also from an order entered in said clerk’s office on the 27th day of January, 1916, as resettled by an order entered in said clerk’s office on the 11th day of February, 1916, denying defendant’s motion for a new trial made upon the minutes.
    
      Victor E. Whitlock, for the appellant.
    " Leon Sanders, for the respondent.
   McLaughlin, J.:

When the defendant was dispossessed its relation with the plaintiff as tenant ceased. An eviction by summary proceedings terminates the liability of. the tenant to pay rent accruing in the future. (Code Civ. Proc. § 2253; McCready v. Lindenborn, 172 N. Y. 400; Michaels v. Fishel, 169 id. 381.) Nor" is the tenant thereafter liable in damages for failure to perform the covenants contained in the lease unless there is an express provision permitting the landlord to re-enter, lease the property and hold the tenant liable for the difference between the amount received and the amount agreed to be paid. (Slater v. Von Chorus, 120 App. Div. 16.)

In the present case there is no proof that the lease was ever assigned to the defendant or that it ever agreed to perform any of the covenants contained in it other than to pay rent. The letter set out in the dissenting opinion, in which defendant said it would “assume the lease,” was in answer to one from the plaintiff asking who was going to pay the rent. Obviously it refers only to the payment of rent while defendant was in possession. There are several covenants by the original tenant in the lease: (a) To use the premises only for a saloon; (b) to keep the premises in repair during the term; (c) to comply with all the requirements of the municipal authorities; (d) to exempt the landlord from liability for accidents, and (e) to pay for insurance of the plate glass in that portion of the premises covered by the lease. It can no more be said that the defendant after being dispossessed was liable for damages under the covenant to pay rent than it can that it was liable for failure to carry out the other covenants, which had been made impossible by the plaintiff herself. Before the defendant can be made liable in damages something more must be shown than that it was in possession with the consent of a tenant to whom the plaintiff leased her property.

The judgment and order appealed from should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

Clarke, P. J., and Page, J., concurred; Scott and Smith, JJ., dissented.

Smith, J. (dissenting):

Plaintiff is the assignee of Max Mann. On the 1st of February, 1910, Max Mann leased to Sarah Fish certain premises at a certain rental. The lease was in writing, and among the provisions therein contained was the following:

“If the tenant is dispossessed by the issuance or service of any warrant or final order in summary proceedings, or if he abandons the premises, he shall nevertheless continue liable for the payment of the rent and the performance of all of the other conditions herein contained. The tenant shall not be relieved from liability for payment of rent, by any assignment which may be made of this lease, whether with or without the consent of the landlord, but each and every assignee and assignor of this lease shall continue to remain liable for the payment of the rent and the performance of all the covenants and conditions herein contained until the expiration of the entire term thereof.”

The lessee Fish ran a saloon and purchased beer of the defendant. Thereafter and in 1910 the defendant took the premises from the lessee and paid the rent. On November 30, 1910, the plaintiff’s representative wrote to the defendant as follows:

“Gentlemen.— You have the assignment of the lease of my store No. 274 Broome Street, and you are in possession.
“ As Mr. Fish is no longer in the store, please let me know to whom I should look for the payment of the rent under the lease in the future.
“Yours respectfully,
“MANN BEOS.”
To this letter on December 1, 1910, the defendant replied:
' “ Gentlemen.—In reply to your communication of the 30th ult. wish to state that our attorneys mailed to you a registered letter containing a check for $150 being the rent for premises 274 Broome St., New York, according to the lease. We will send you the check for the rent on each first Monday of the month and assume the lease.
“Yours very truly,
“FERDINAND MUNOH BREWERY.”

Thereafter the defendant regularly paid the rent of $150 a month up to and including July, 1913. Failing to pay the August rent, a dispossess proceeding was commenced in the Municipal Court, resulting in a warrant dispossessing the defendant. Thereafter an action was brought in the Municipal Court to recover the August rent and judgment was rendered for the plaintiff thereupon. The plaintiff then, being in possession, sought to relet the premises to minimize her dam: age, and secured the sum of $122. This action is brought to recover as damages the difference between the rent reserved in the lease from September, 1913, to and including April, 1914, less the amount actually received by the plaintiff through reletting the premises.

One question only was submitted to the jury, and that is, whether one of the officers of the defendant consented to the plaintiff’s leasing the premises after the defendant was dispossessed therefrom. The jury having found in the affirmative upon that question, judgment was ordered by the trial court for the amount of the rent less the amount received by the plaintiff for rental.

The defendant first objects to this judgment on the ground that there was no proof of a written assignment of the lease. In McAdam on Landlord and Tenant (4th ed. p. 864) the rule is stated: “Where a person other than the lessee is shown to he in possession of leased premises paying rent therefor the law will presume that the lease has been assigned to him, hut this presumption may be overthrown by showing that a different relation from that of assignee exists between him and the lessee.” To that rule of proof a number of authorities are cited upholding the rule as stated. (See Dey v. Greenebaum, 82 Hun, 533; affd., 152 N. Y. 641; Moskowitz v. Eastern Brewing Co., 117 N. Y. Supp. 1017, 1018.) While the answer denied a written assignment to the defendant of the lease in question, no proof was offered upon the trial to rebut this presumption that the defendant occupied by an assignment sufficient under the statute to pass title to the lease. (See Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 242.)

Another contention may well be here referred to. The lease provides that the tenant as well as the assignee shall be liable to pay rent after his dispossession by summary proceedings. It is insisted that rent can only be exacted as a compensation for possession and that the agreement is for that reason void, as providing for the payment of “rent” after dispossession. This contention is based' upon a mere technical definition of the word “rent.” It is true that rent is usually referred to as compensation for possession of real property. The intention, however, of the provision in the lease is unmistakably to require the tenant as well as the assignee to pay “ the sum stipulated as rent ” to the end of the term, even after dispossession, so that the agreement must be interpreted in effect to provide for the payment of damages which the lessor may suffer by reason of the dispossession which is the result of the tenant’s own wrong. In Michaels v. Fishel (169 N. Y. 381) a lease was presented for consideration in which the term “ re-enter ” was used. Ifc was there held that a re-entry after dispossession released the lessee from the payment of rent thereafter accruing. In the discussion, however, Judge Vann says: “ While it was within their power to agree that the lessee should continue to pay rent after the premises had been taken away from him owing to his default, still a covenant to pay, with no right to enjoy, should be clear and unambiguous as to the event which calls it into action, for, as was said by an old writer, 1 a tenant can 'make no return for a thing he has not.’”

This statement by a most learned judge recognizes the liability in a lessee where the liability is clearly expressed to pay “ rent ” after dispossession.

In the lease here for consideration there is no ambiguity. The liability of the lessee and of his assignee is unquestionably stated. It is provided that the tenant is to “remain liable for the payment of the rent and the performance of all the covenants and conditions herein contained ” even in case of dispossession in summary proceedings. It is further provided that “each and every assignee and assignor of this lease shall continue to remain liable for the payment of the rent and the performance of all the covenants and conditions herein contained until the expiration of the entire term thereof.” This lease is different from those usually found, in that it places the burden of liability for payment of rent until the term has fully expired not only upon the lessee but specifically upon the individual assignee and assignor. lío assignment is permitted except with the consent of the lessor. That consent was in this case given, and in legal effect it was upon the implied condition that the assignee should assume the obligations of the lease which he was accepting. The acceptance of an assignment of a lease which assumed to impose this liability upon the assignee bound the assignee as firmly as does the acceptance of a deed which binds the grantee to any covenants therein made in his behalf. Moreover, if there be any doubt as to the legal effect of the acceptance of this assignment, that doubt is removed by the letter of the defendant upon taking possession of the property in which the defendant agrees to pay the rent and to “ assume the lease. ” An agreement to assume a lease can only mean to assume the covenants therein contained, especially any covenant therein contained which is provided as a condition of the assignment and made on behalf of the assignee, and where the assumption of that liability is impliedly a condition of the assent of the lessor to the assignment.

The jury has found that the premises were leased by the plaintiff after the dispossession through the consent of the defendant. This assent would save the plaintiff from any possible waiver of the conditions of the lease, but we are of opinion that a lease of the property without such consent would only he in conformance with the plaintiff’s duty to lessen the damages as far as possible, and, therefore, upon such leasing no claim of waiver could be made.

The judgment and order should, therefore, be affirmed, with costs.

Scott, J., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  