
    Henrietta Adams, Respondent, v. H. Koehler & Company, Appellant.
    (Supreme Court, Appellate Term,
    November, 1909.)
    Former adjudication — What matters are concluded — Matters necessarily involved.
    Landlord and tenant — Rent and advances — Rights and liabilities — Persons liable — Transfer of lease or agreement — Liability of assignee — How terminated.
    A judgment in favor of the plaintiff, in an action for rent, against the assignee of a lease alleged to be in possession of the demised premises, is conclusive in a subsequent action between the same parties for rent subsequently accruing, upon the question of possession, and the fact that the defendant had not previously assigned the lease; and evidence offered by defendant, tending to disprove its entry into possession under the lease, or to establish a previous assignment thereof, is properly excluded.
    The assignee of a lease who has entered into possession of the demised premises can free himself from liability for rent only by a surrender of the premises or an assignment of the lease.
    Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff, after a trial by the court without a jury.
    Pratt, Koehler & Russell (Jerome H. Koehler and Carl M. Abromeit, of counsel), for appellant.
    Henry Kuntz (Abraham P. Wilkes, of counsel), for respondent.
   Lehman, J.

The plaintiff herein brought an action against the defendant as assignee of a lease of premises known as No. 1800 Second avenue for the months of November and December, 1908, and January and February, 1909. The defendant set up practically a general denial and two separate defenses, alleging that it received the assignment only as collateral security for a loan, and was never in possession of the premises under the assignment, and that, on the 20th day of May, 1908, it duly assigned all its rights, title and interest in said lease to Thomas II. Fox and William. J. Harmon, who then entered into possession of said premises under the lease mentioned in the complaint, and that, since the said 29th day of May, 1908, it had not heen in possession of said premises.

It appears that the plaintiff herein had recovered judgment in an earlier action against the defendant for rent for the months of July to October, 1908. At the trial of this present action, the plaintiff offered in evidence the judgment roll in the previous action. It appears that, with the exception of the names of the months, the pleadings were the same as in this action. The plaintiff then called as her witness the president of the defendant who testified that, since the thirtieth of September, he had not gone near the premises nor had he or any one in his behalf done anything in regard to the premises; and that, during the four months, November, December, January and February, he was actively connected with the defendant corporation; and that nothing was done to his knowlédge on behalf of the corporation with reference to that store from the 30th day of September, 1908, until the 1st day of March, 1909. The plaintiff then rested.

The defendant then attempted to show that, during the said months, it had no property in the store and that, on the 2Jth day of August, 1908, it removed all its property from the store; and, further, that the plaintiff had, on that day, removed some of the defendant’s property from the premises; that the store was vacant and had a “ To Let ” sign upon it during the month of November. The defendant then attempted to show the assignment of the lease to Thomas Fox and William J. Harmon on the 20th day of May, 1908. The trial justice correctly excluded all the evidence on these points. The judgment roll has conclusively established that there was no assignment of the lease on May 20, 1908, the alleged assignment being merely colorable, and that, on the 1st day of October, the defendant was legally in possession of the premises. To establish liability for the succeeding months, the plaintiff must show only that the legal possession continued. While the defendant is not the lessee, but only the assignee of the lease, and is, therefore, liable for rent only while the privity of estate continues, yet this privity continues not only while the defendant is actually occupying the premises, but so long as it continues in possession thereof. In other words, the assignee of a lease who has entered into possession of the leased premises can free himself from liability for rent only by giving up the dominion of the property, and he can do so only by surrender of the premises or by assigning his lease. Since the plaintiff was, by the judgment roll, conclusively shown to have been in possession of the premises on October first, no evidence was material, except affirmative acts showing or tending to show an abandonment of possession after that date.

The evidence required the justice to find for the plaintiff, and there are no rulings on evidence that present reversible error.

The judgment should be affirmed, with costs.

Gildersleeve and Seabury, JJ., concur.

Judgment affirmed, with costs.  