
    Joseph Marone, Appellant, v. Hinckel Brewery Company, Respondent, Impleaded with George C. Hawley and Others, Defendants.
    Third Department,
    May 6, 1908.
    Landlord and tenant — assignment of lease — liability for rent.
    The assignee of a lease in possession of the premises is liable to the lessor for rent during his possession.
    In an action by the lessor against such assignee it is error to dismiss the complaint when it appears that the defendant refused to allow the plaintiff to occupy the premises, asserted that its right to possession was superior to its assignor, and refused-to consent to a sale of the premises except subject to the lease.
    Chester and Sewell, JJ., dissented.
    
      Appeal by the plaintiff, Joseph Marone, from a judgment of the Supreme Court in favor of the defendant brewery company, entered in the office of the clerk of the county of Albany on the 31st day of J anuary, 1901, upon the dismissal of the complaint by direction of the court at the' close of the plaintiff’s case upon a trial at the Albany Trial Term.
    
      Frank Cooper and Neile F. Towner, for the appellant.
    
      Rosendale & Hessberg [Murray Downs of counsel], for the respondent.
   Cochrane, J.:

This is an action to recover of the respondent, Hinckel Brewery Company, rent of certain premises for four months from June 1 to October 1, 1904, at the rate of $100 a month. Plaintiff owned the premises, which consisted of a saloon and concert hall, and on January 30,1904, executed to John D. Van Eck a written lease thereof for three years with the privilege of renewal. On the same day Van Eck assigned the lease to respondent. On the day when the lease was executed and assigned plaintiff sold to respondent a quantity of personal property then in the saloon and concert hall and of the value of about $2,000. Allusion is made in the lease to such sale, but it has no bearing on the question now presented. Van Eck for a time conducted business on the premises, but during the time for which plaintiff seeks to recover rent herein the place was closed and devoted to no purpose except that said personal property sold by plaintiff to respondent was during all of such time kept and stored therein.

It appears from the evidence either directly or inferentially that respondent for the first four months of the lease paid the rent amounting to $400. Its officers asserted their control of the premises, at one time saying to plaintiff, “We have charge of the place, stuff and everything,” and making similar assertions to other parties. They negotiated in connection with plaintiff for a sale of the premises and refused to allow him to make such sale except subject to the lease unless the purchaser would also purchase said personal property. They also refused to allow plaintiff to occupy the place unless he made arrangements satisfactory to themselves. At the very time when this rent was falling due and plaintiff was demanding it of respondent, the latter did not disclaim possession or remove the personal property or abandon the premises. Asserting that Van Eck had nothing to do witli the premises, and holding from him an assignment of the lease, respondent continued to occupy said premises with its personal property although plaintiff was all the time demanding of it the payment of the rent.

From the foregoing evidence it would have been a proper deduction by the jury that the respondent was in possession of the leased premises under its assignment of the lease; and had the jury so found the right" of plaintiff to a recovery would have been established.

The assignee of a lease in possession of the leased premises is liable to the lessor for the rent during such possession. (Sayles v. Kerr, 4 App. Div. 150; Clark v. Aldrich, Id. 523; Frank v. N. Y., L. E. & W. R. R. Co., 122 N. Y. 197, 215; Damainville v. Mann, 32 id. 197; Dassori v. Zarek, 71 App. Div. 538.)

It was, therefore, error to dismiss the complaint.

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

All concurred, except Ohesteb and Sewell, JJ., dissenting.

Judgment reversed and new trial granted, with costs to appellant to abide event.  