
    Anna E. Rudd et al., App’lts, v. Margaret E. Beardsley, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 24, 1888.)
    
    Assignment oe lease—Delivery necessary to render it operative. The lessee of certain premises assigned the lease thereof to a parly, who> thereupon entered into, and continued in possession of the same. Previous to this she had executed an instrument, assigning the lease to other parties in trust to pay the rents and profits thereof to her during life, and at her death to certain beneficiaries therein named, and to assign the lease to the beneficiaries upon the younger of them attaining her majority. The-latter instrument was undelivered up to the time of the death of the assignor, and the trust set forth in it was never accepted by the trustees named therein. Deld, that the delivery of the paper after the death of the assignor was imperative, and did .not affect the rights of parties under the other assignment, in the absence of proof of the intention of the assignor that it should be so delivered.
    Appeal from a judgment of the special term, dismissing-the plaintiffs’ complaint upon the merits.
    
      Lawrence & Waehner, for app’lts: Sidney S. Harris, for resp’t.
   Macomber, J.

This action was brought to vacate and set aside an assignment of a certain lease and to have the same, and the rents and profits thereof, adjudged to inure to the benefit of the plaintiffs.

Clement O. Moore, on June 20, 1861, being then the owner in fee of the premises known as No. 325 West Twenty-fourth street, in the city of New York, leased the same to one Abram L. Casey. Casey entered into possession of the leasehold premises, and in February, 1863, with the knowledge and consent of the lessor, assigned the lease-to Rachel Rudd,'who thereupon entered into possession of the premises, and continued uninterruptedly in such possession, renting and collecting the rents, until the month of March, 1882, when she received from William T. Moore a new lease of such premises: On June 26, 1882, Rachel Rudd, with the consent of William T. Moore, assigned the-new lease to Margaret E. Beardsley, the defendant, whereupon the latter entered into possession of the leasehold premises, and continued in possession thereof since that time. The consideration of such assignment consisted of board and lodging furnished by her to Rachel Rudd, and for care and nursing.

Prior to this time, however, namely, on the 15th day of June, 1880, Rachel Rudd executed an instrument and assigned the said prior lease to Samuel F. Jayne and Mathias Abbott, from that date, for the residue of the term of years mentioned, in trust to pay the rents and profits thereof to her during life, and at her death to her two granddaughters, Anna and Carrie Rudd, the plaintiffs. And when the younger of the plaintiffs became twenty-one years of age the trustees were to assign said lease to them subject to the said rents and covenants and conditions and provisions of the lease.

The last mentioned instrument, namely, that of June 15, 1880, was executed without the knowledge or consent of the trustees named therein, and without the consent or knowledge of Mr. Moore, the lessor, and was without consideration.

One of the questions in the case is whether or not the paper purporting to be the assignment of the leasehold interest made in 1880 was ever actually delivered. Rachel Rudd, after the same was executed, placed it in a pigeonhole or compartment of her own in a safe owned by Mr. Jayne where he kept her private papers, with instructions that the same should be kept there subject to her order and that it remain there until after her death.

Rot only does the old lady seem not to have made any other disposition of the paper, but the trustees, Jayne and Abbott never accepted the trust under it, but the same remained in the till of Rachel Rudd, undelivered, up to the time of her death.

The delivery of the paper by Jayne after the death of the assignor was wholly inoperative as an act binding upon the estate of Rachel Rudd. Rachel Rudd continued in sole possession of the premises, continued to rent the house to tenants and collect the rents, employing agents therefor, and paying taxes as theretofore. This fact is established by a clear preponderance of the evidence, and in the absence of proof showing that it was the intention to have the instrument delivered to the plaintiffs or to the trustees named therein after her death, it must be deemed to be conclusive and decisive of the rights of the parties. The acts of Rachel Rudd are clearly inconsistent with any purpose of having the instrument become effective after her decease, because she made the unqualified written assignment on June 26, 1882, of the new lease which bears date April 8, 1882, and which superseded the prior one.

The judgment should be affirmed, with costs.

Van Brunt, Ch. J., and Bartlett, J., concur.  