
    Bokhara Realty Corporation, Respondent, v. Barton’s Bonbonniere, Inc., Tenant, et al., Undertenants, and Besson Cohen et al., Appellants.
    Supreme Court, Appellate Term, First Department,
    January 29, 1959.
    
      
      Leon D. Miller and Bernard Novieh for appellants.
    
      Delatour & Miller (Franh A. Barrera of counsel), for respondent.
   Per Curiam.

Since the undertenants received by transfer the precise term which each of its predecessors had acquired from its transferor without the retention by the latter of a reversionary interest, there was at least a presumption of an assignment and not an undisputable sublease. Moreover the record reveals sufficient evidence from which the jury could determine that landlord had waived the conceded flat restriction against assignments of the original lease,

Consequently it was error for the court below to deprive undertenant of the right to have the jury pass upon questions of fact, by discharging the jury contrary to the request by undertenant that the issues be submitted to the jury, and to grant a final order in favor of landlord.

The final order should be reversed and a new trial ordered, with $30 costs to appellants to abide the event.

Concur — Hecht, J. P., Aurelio and Tilzer, JJ,

Pinal order reversed, etc.  