
    Cyrus Scofield, App’lt, v. Cecilia Valentini, Impl’d, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1892.)
    
    Replevin—Pleading.
    A complaint in replevin, alleging the leasing of certain chattels to H. with a condition that plaintiff should be entitled to possession on failure to make the stipulated payments, and that they should not be underlet without his written consent; that H. transferred them to V. without plaintiff’s knowledge; default in the payments and demand of the chattels of V. and her refusal, states facts sufficient 'o constitute a cause of action against both defendants; Y. took the chattels, subject to all the conditions of the lease, although she did not know of such lease; and upon default in payment plaintiff was entitled to possession, and Y.’s detention of the chattels after demand was wrongful.
    Appeal by plaintiff from an interlocutory judgment of the ‘ special term sustaining demurrer of defendant Yalentini to the-complaint. The action was brought to recover possession of certain chattels, being household furniture, which were leased by plaintiff to the defendant Harris, and by her transferred to the-defendant Yalentini. The latter demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action.
    
      Wm. G. McCrea (T. J. Rush, of counsel), for app’lt; Louis Hasbrouck, for resp’t.
   Daly, Ch. J.

The complaint sets forth (1) the leasing of the chattels to the defendant Harris by different leases, under which stipulated sums were to be paid weekly and monthly for the use thereof, with an agreement that the leases should cease and the plaintiff should be entitled to possession of the chattels if default were made in any of the payments; and that the chattels should not be underlet without the written consent of the plaintiff ; (2) a transfer- of the chattels by defendant Harris without plaintiff’s knowledge or consent to defendant Valentini, who was in possession thereof when the action was commenced; (3) failure of defendants to comply with the terms of the lease by omitting to make the payments therein required, and that by reason thereof plaintiff became and is entitled to a return of the goods ; (4) demand upon defendant for such return and refusal thereof before the commencement of the action.

The facts stated are sufficient to constitute a cause of action against both defendants. The learned counsel for the defendants would treat the complaint as basing the plaintiff’s right to reclaim the chattels upon the breach of the covenant against underletting,, and argues that as the complaint does not allege an agreement for the return of the goods upon breach of such covenant no-cause of action is stated.

But the complaint alleges an express covenant entitling plaintiff to possession of the chattels in case of default in payment of rent; and as it is averred that default has been made in such payment by both defendants, and that demand has been made for a return of the property, the complaint sets forth a perfect cause of action against the defendant Valentini fora wrongful detention of the chattels, and “ the facts showing that the detention was wrongful ” as required by the Code. Sec. 1721.

It is immaterial whether the uefendant Valentini knew of the lease from plaintiff to the defendant Harris when she took from the latter a transfer of the chattels. She took them subject to all the conditions of that lease because she could get no better title by the transfer than that possessed by the lessee. Austin v. Dye, 46 N. Y., 500; Ballard v. Burgett, 40 id., 314. When, therefore, default was made in the payment of the rent reserved in the lease the plaintiff became entitled to the possession of the property, and though the defendant Valentini had received it in good faith, her detention thereof after demand was wrongful. All the facts-necessary to sustain the action against her are set forth in the complaint, and the demurrer should have been overruled.

Interlocutory judgment reversed and judgment overruling demurrer ordered for plaintiff with leave to answer in twenty days. Costs of demurrer and of appeals to plaintiff.

Bischoff and Pryor, JJ., concur.  