Ruthbert Real Estate Corp. v. Newtal Corp. ( 1965 )

In a summary dispossess proceeding for the nonpayment of rent under a lease executed by Eastberg Service Stations, Inc., as lessee, the Newtal Corp., which is alleged in the petition to be the tenant in possession by virtue of an assignment of the lease, appeals by permission of this court from an order of the AppeEate Term of the Supreme Court, entered March 11, 1964, which: (1) reversed a final order of the Civil Court of the City of New York, Queens County, entered February 19, 1963 after a nonjury trial, in favor ¡of ¡the alleged tenant Newtal Corp.; and (2) directed judgment in favor of the landlord as prayed for in the petition. Order of the Appellate Term reversed on the law and the facts, with $10 costs and disbursements, and final order of the Civil Court of the City of New York reinstated. Findings of fact in the courts below which may be inconsistent herewith are reversed, and new findings are made as indicated herein. In our opinion, the mere payment of the rent over a period of years by Newtal Corp., which is not a party to the lease, without any proof of an assignment from the original lessee, Eastburg Service Stations, Ine., and without proof of possession by Newtal or of any other act by Newtal indicating that it was an assignee, does not, by operation of law, render Newtal an assignee of the original tenant or lessee and liable as such under the terms of the lease. Beldock, P. J., Ughetta, Christ and Hill, JJ., concur. Rabin, J., not voting.