
    S. Liebmann’s Sons Brewing Company, Appellant, v. Wilhelm Lauter, Respondent, Impleaded with Others.
    
      Violation of a covenant by a tenant not to assign the lease— it renders the lease voidable not void — how pleaded as a defense by the landlord to an action to foreclose a mortgage given by the tenant.
    
    Where an assignee of the lessee’s interest in a lease, which contained a covenant that the lessee “ will not assign this lease nor let or underlet the whole or any part of the said premises * * * without the written consent ” of the landlord “under the penalty of forfeiture and damages,” mortgages the lease, an answer interposed by the landlord, in an action to foreclose such mortgage, in which he alleges that he did not consent to the assignment or the mortgage of the lease, and that, by the assignment, the lease had become forfeited, but which does not allege that he re-entered upon the premises, or took any other proceedings to avail himself of the breach, is demurrable, as the violation of the covenant did not render the lease void, but merely voidable.
    Appeal by the plaintiff, S. Liebmann’s Sons Brewing Company, from an interlocutory judgment of the Supreme Court in favor of the defendant, Wilhelm Lauter, entered in the office of the clerk of the county of New York on the 23d day of December, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the separate defense contained in the answer to the amended complaint, interposed by the defendant, Wilhelm Lauter.
    
      Samuel Hoff, for the appellant.
    
      August P. Wagener, for the respondent.
   O’Brien, J.:

The action is brought by plaintiff to foreclose a mortgage on a lease which had been made by the defendant Lauter, the landlord, to one Patrick Quinn and by the latter assigned to Edwards who mortgaged it to plaintiff. One of the covenants of the lease pro-. vided that the lessee will not assign this lease nor let or underlet the whole or any part of the said premises * * * without the written consent ” of the landlord under the penalty of forfeiture and damages.”

Lauter was made a party defendant because of the covenants in the lease, but no personal judgment was asked against him. In his answer, among other things, he alleges that he did not consent to the assignment or the mortgage of the lease, and then avers that by the assignments the lease became forfeited. To this separate defense the plaintiff demurred, but the demurrer was overruled, and from the interlocutory judgment thus entered this appeal is taken.

The single question presented is whether a violation of'a covenant in a lease not to assign works a forfeiture of the lease without further action on the part of the landlord. The authorities, as we read them, are to the effect that an assignment without the consent of the landlord renders the lease not void but voidable. If the landlord chooses to avail himself of the breach he can do so by re-entry or by enjoining the tenant from assigning, or he can recover damages for breach of the covenant. As said in Chautauqua Assembly v. Alling (46 Hun, 584): “ The several assignments of the interests, of the lessees are not absolutely void; hey are voidable only at the election of the lessor or its assigns. They pass the title subject to' the consequences of the breach. * * * If the lessor or itsassignee chooses to avail itself of the breach, it can only do so by re-entering, as provided by the lease, or by pursuing such other legal remedy as the right of re-entry confers.” (See, also, Kramer v. Amberg, 53 Hun, 427.)

In the answer of the landlord there is no allegation of re-entry or of any proceeding taken or any election to avail of the breach, and no counterclaim is pleaded or damage claimed. We think, therefore, that this defense is insufficient in law, and that the demurrer should have been sustained.

The interlocutory judgment must accordingly be reversed, with costs, and the demurrer sustained, with costs, but with leave to the defendant to answer over upon payment of the costs.

Patterson, McLaughlin, Hatch and Laughlin, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to answer over on payment of costs in this court and in the court below.  