
    The Broadway Building Co., Respondent, v. Joseph Myers, Appellant.
    (Supreme Court, Appellate Term,
    February, 1906.)
    {Landlord and tenant — Termination of relation — Assignment or subletting: Rent and advances — Rights and liabilities — Eviction.
    Where a lease contains a covenant not to assign or sublet without the written consent of the landlord and restricts the use of the premises to the tenant and his employees, and the tenant moves out before the expiration of the term leaving in possession a third person whom he had permitted to occupy a part of the premises and have his name upon the door, and the landlord, refusing to permit him to remain, moves out his furniture, erases his name from the door and changes the locks, the tenant, upon his plea of eviction, in an action for rent, is entitled to have the facts submitted to the jury.
    The landlord’s remedy for the breach of the tenant’s, covenant not to assign or sublet is either by an action for damages, or where the lease so provides, by a re-entry, or expulsion of the tenant or those claiming under him.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Yew York, second district, borough -of Manhattan, rendered in favor of the plaintiff.
    Wilson R. Mendell, for appellant.
    Andrew Gilhooly, for respondent.
   Greenbaum, J.

Defendant hired offices in plaintiff’s building under a written lease extending from May 1, 1905, to May 1, 1906, having previously been a tenant for some time. Defendant had permitted one Gorsuch, trading as D. W. Buchanan & Co., to occupy part of the offices and have Ms name on the door. About May first, defendant concluded to take offices in another building and endeavored to get plaintiff to accept Gorsuch as its tenant. This plaintiff declined to do. Defendant moved out leaving Gorsuch in possession. Plaintiff refused to permit Gorsuch to remain, moved his furniture out, had his name erased, from the door, and had the tumblers in the lock changed. The lease forbade any assignment or subletting, without the written consent of the landlord, and restricted the use of the offices to the tenant and his employees. There is no pretense that there was any assignment of the lease, or sublease to Gorsuch, with the consent of the landlord. Defendant seeks to establish eviction by reason of the change in the lock and other acts done by plaintiff or its agent.

The question arises as to the rights of the landlord in case of a breach of a covenant in the lease not 'to assign or sublet. The remedy in such cases seems to be either by an action for damages against the lessees, or a re-entry or expulsion of the lessees, or thosé claiming under them, in case of a covenant in the lease giving the right to re-enter. Chautauqua Assembly v. Alling, 46 Hun, 582, 584.

Such a right to re-enter is entirely in the option of the lessors. They may either exercise that right or waive it. Murray v. Harway, 56 N. Y. 337.

The breach of the covenant, however, would not give the right to the landlord to forcibly interfere with the enjoyment of the use of the premises by the tenant, nor to forcibly eject any person who .occupied the premises with his approbation. A landlord has no right to enter upon his tenant’s premises during the term of. the lease, without the tenant’s consent. Shannon v. Burr, 1 Hilt. 39.

Such interference may be tantamount to an eviction. The defendant was entitled to have the facts which tended to show interference with the beneficial use and enjoyment of the premises on the part of the tenant or his lessee submitted to the jury on his plea of eviction. There was no justification in taking away from the jury the determination of the questions of fact bearing upon the alleged eviction.

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

Scott and Giegerich, JJ., concur.

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