
    Reuben M. Manley, as Executor of the Estate of Mary A. Manley, Deceased, Appellant, v. Morris Berman and John McManus, Respondents.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Landlord and tenant — Rent and advances — Rights and liabilities: Injury to, destruction, or untenantable condition of premises — Effect of tenant’s covenant to repair; Surrender; Persons liable — Transfer of lease or agreement — Continued liability of lessee.
    The assignment of a lease with the consent of the landlord and his acceptance thereafter of rent from the assignee do not release the tenants from liability under their express covenant to pay rent, in the absence of evidence of the termination of their estate upon a sufficient consideration or by the re-entry of the landlord.
    The tenants having expressly covenanted in the lease to promptly comply with all orders, ordinances and regulations of the departments of the city and state governments applicable to a lessee’s use of premises, they could not claim eviction, and consequent non-liability for rent, upon the ground that the premises became untenantable and that they were evicted by the building department under an order of the Supreme Court condemning the building as unsafe.
    Where the tenants hold over after the day upon which the rent, payable in advance, was due, they remain liable for the rent of that month, though the landlord afterward accepted a surrender of the premises.
    Appeal by the plaintiff from a judgment in favor of the defendants, rendered in the Municipal Court of the city of New York, first district, borough of Manhattan.
    
      Manley & Grand (James P. Callender, of counsel), for appellant.
    Fried & Fried (Herman S. Fried, of counsel), for respondents.
   MacLean, J.

The plaintiff brought this action to recover rent for certain lofts in No. 230 West Broadway for the month of November, 1907, which by the terms of the lease the defendants, as lessees, had expressly covenanted to pay in advance, and likewise for Croton water charges, to pay their proportion of which the defendants had also expressly covenanted, as they also had expressly covenanted “ to promptly comply with all orders, ordinances and regulations of the Departments of the City or State Governments, * * * applicable to lessee’s use of said premises, at the cost of lessee.” After certain denials and admissions in their answer, the defendants alleged that, some time prior to the month of November, 1907, they assigned the lease to the firm of Schwartz, Freed & Speyer; that the plaintiff had notice thereof and afterward accepted rent from said firm, agreeing to look only to said firm for the rent of the premises, and also accepted a surrender thereof from the defendants. For a second defense the defendants alleged that, prior to the 1st of November, 1907, the premises became untenantable and they were evicted by the building department, under an order of the Supreme Court condemning the building as unsafe. Judgment was rendered in favor of the defendants, and therefrom the plaintiff brings this appeal.

Notwithstanding the assignment by the defendants of the lease herein, even with the consent of the landlord and the acceptance thereafter of rent from the firm of Schwartz, Freed & Speyer, the defendants still remained liable upon their express covenant to pay rent (Ranger v. Bacon, 3 Misc. Rep. 95; Wallace v. Dinniny, 11 id. 317, 319), there being no evidence herein of a determination of their estate upon a sufficient consideration or by the re-entry of their landlord. Upon their express covenant to comply with the orders of the city government they may not claim eviction and so no liability (Markham v. David Stevenson Brewing Co., 104 App, Div. 420) ; nor may they claim surrender and acceptance by leaving the keys with the stenographer in the office of the plaintiff so as to defeat the claim of the plaintiff, because the claim for rent was due and owing upward of two weeks prior to either alleged eviction or surrender and acceptance. Cheesebrough v. Lieber, 18 Misc. Rep. 459; Stern v. Murphy, 102 N. Y. Supp. 797, 798. The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Gildersleeve and Seabury, JJ., concur.

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