
    Rose J. Clark and Others, Respondents, v. Bruce S. Aldrich, Appellant.
    
      Lease—administratrix of a dowress not a proper party plaintiff in an action for rent — the objection thereto must be specific — a tenant cannot claim, that his landlord'has only part of the title to the premises — an assignee of a lease is liable for rent while he holds, but not after he assigns, the lease — the court should construe a lease.
    
    Where, in an action brought to recover rent under a lease, the administratrix of a widow (one of the lessors), who had an unassigned dower interest in the leased premises, is made a party plaintiff, the defendants must take the objection that the administratrix is improperly made a party, or will be deemed to have waived it.
    Where land is leased by three of five owners, tenants in common thereof, the party entering into and retaining possession under the lease cannot set up as a defense to an action, brought by his lessors to recover rent falling due under the terms of the lease, the non-joinder as parties plaintiff of the other two tenants in common.
    The assignee of a lease who enters into possession of the demised premises thereunder is liable for the rent while he occupies the premises, but if he assigns his interest and.ceases to occupy the premises his liability for rent is terminated.
    Where an instrument upon its face purports to assign a lease it is erroneous for' the court to leave to the jury the decision as to the effect of the instrument.
    Appeal by the defendant, Bruce S. Aldrich, from a judgment of the County Court of the county of Onondaga in favor of the plañir tiffs, entered in the office of the clerk of the county of Onondaga on the 19th day o.f July, 1895, upon the verdict of a jury rendered after a trial at the Onondaga County Court, and also from an order entered in said clerk’s office on the 17th day of April, 1895, denying the defendant’s motion for a new trial .made upon the minutes. "
    This'action was begun July 21, 1894, in a Justice’s Court. The pleadings were as follows:
    Complaint.— “ Plaintiffs complained for rent of premises near Maple Bay, Onondaga county, for April, May and June.”
    Answer;—“Defendant answered, general denial, misjoinder and non-joinder of parties plaintiff.”
    A trial was had which resulted in a verdict for $185.76 damages. The costs were adjusted at $6.92, and a judgment rendered for the plaintiffs for $192.68; thereupon the.defendant appealed to the County Court, demanding a new trial, which was had, and a verdict rendered for the plaintiffs for $185.85. A motion for a new trial on the minutes was made, denied and an order entered. Thereafter, the plaintiffs’ costs were taxed at $59.22, and July 19, 1895, a judgment was entered in favor of the plaintiffs for $245.07, from which the defendant appealed to this corirt.
    October 14,1888, George S. Brand died intestate, seized in fee of a farm, leaving Rose J. Clark, Came Quinn and Ella M. Brand, daughters (the plaintiffs herein), and two grandsons, children of a deceased son, who are infants residing in the State of Iowa, his heirs and next of kin, and Almena Brand, widow. May 14, 1889, the plaintiffs herein and Almena Brand entered into a written lease, under seal, with "Willis S. Barnum, by which he leased the part of the farm lying east of the Oswego and Syracuse railroad for the term of ten years from April 1, 1889, for the yearly rent of ten dollars per acre for the upland and fifteen dollars per acre for the swamp and reclaimed land, payable on the first days of April, May, June, July, August, September, October and November in each year. The lease provided that the quantity of land was to be ascertained by a survey, which -was made, and it was ascertained that there were eighteen and seventy-nine one-hundredths acres of upland and twenty and fifty-two one-hundredths acres of swamp and reclaimed land, and that the annual rent amounted to $495.36, $61.92 being payable on the first days of April, May, June, July, August, September, October and November in each year.
    Under this leasé the lessee entered into possession of the demised premises, and December 12,1892, he sublet apiece of said premises forty feet wide by seventy feet long to George W. Steele for twenty years for an annual rental of ten dollars. Steele entered into possession of the piece so sublet to him, and still remains in possession thereof. Willis S. Barnum occupied the remainder of the demised premises until August 9, 1893, when he, by a written assignment, assigned his lease and also the lease to Steele to the defendant in this action, who then entered into possession of all the leasehold premises, except that sublet to Steele, and paid the stipulated rent until April 1, 1894: November 23, 1893, the defendant signed the following instrument:
    “ For value received I hereby sell, assign, transfer and set over to Frank B. Maycumber all my right, title and interest in and to a certain lease of land at Maple Bay by Ella M. Brand and others to Willis S. Barnum.
    “ Syracuse, Nov. 21th, 1893. BRUCE S. ALDRICH.”
    This assignment was not delivered to the assignee therein named until April 2, 1894. The interest of Almena Brand in the premises was her unassigned dower right. May 13, 1892, she died intestate, leaving her said three daughters and said two grandchildren her heirs and next of kin, and subsequently Ella M. Brand was appointed administratrix of said deceased. This action was brought for the recovery of the rent due in April, May and June, 1894, and was defended on the.ground that the defendant had assigned the lease, surrendered possession of the premises to his assignee, and was not liable for rent, "nor for use and occupation after his surrender, and. also on the ground that there was a defect of parties plaintiff.
    
      E. N. Wilson, for the appellant.
    
      Charles E. Ide, for the respondents.
   Follett, J.:

The unassigned dower right of Almena Brand in the leased premises was extinguished by her death, which occurred May 13, 1892, and her administratrix has no interest in the rent sought to be recovered in this action, and she is an unnecessary party plaintiff,, but the objection Was not sufficiently raised by the answer. The defendants should have pointed out specifically the defect relied on, that the administratrix was improperly joined as a party plaintiff (Berney V. Drexel, 33 Hun, 419), and, not having done so, the objection is waived.

The defendant cannot dispute the title of his landlords, and the grandsons of George S. Brand, if living and retaining their interests in the premises, are not' necessary parties, and, besides, the answer does not specifically raise the question that they should have been joined as plaintiffs.

The assignee of a lease, who enters into possession of the leased premises, is liable for the rent thereof during the time he remains in possession^ but if he assigns his interest and ceases to occupy the premises, his liability for rent is terminated. The decision of this case turned upon whether the defendant occupied the premises under this lease during April, May and June, 1894. The defendant read in evidence the assignment of November 27, 1893, set forth in the statement of facts, and testified that he had not been in possession of the premises, or any part of them, since November 27,1893, at which date he. testified "he. surrendered them to Maycumber,. his assignee. The plaintiffs asserted that this assignment', was merely colorable, and that the defendant remained in possession during the time for which rent was sought to be recovered. This question of fact Was sharply litigated on the trial, and the evidence was quite sufficient to present a question for the jury. If it were true that the defendant’s assignment was colorable, and that he was in fact in occupation' of the premises, through Maycumber. as his agent, he remained liable for'rent.'

The defendant requested the court to charge that, “if it (the assignment of the lease) was executed and delivered with the intent of conveying the estate, that the instrument itself is legally sufficient to accomplish that purpose.” “ The Court: The effect of this instrument I am going to leave to the jury.” The defendant also requested the court to charge: “ That the instrument, Exhibit ISTo. 4 (the assignment of the lease), purporting to be executed by the defendant to Maycumber, is in form and language sufficient to legally transfer all the interest that Aldrich had in the premises in question.” “ The Court: I don’t know about that. I will leave that to the jury. I decline to charge that.” To this ruling the defendant excepted. This was error. This assignment, on its face, was sufficient in form to,transfer all the defendant’s interest in the original lease, and the court should have so charged.

This assignment had no legal effect unless it was delivered by Aldrich to Maycumber and accepted by the lattei1, with intent on the part of 'both that it should take effect according to its terms. If it were so delivered and accepted, it was sufficient, to transfer the defendant’s interest in the premises, provided the defendant surrendered possession of the premises to Maycumber, pursuant to the assignment, and thereafter ceased to occupy the premises.

The judgment and order should be reversed and a new trial granted, with costs to abide the event.

All concurred.

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