Clark v. Aldrich , 40 N.Y.S. 440 ( 1896 )

Follett, J.:

The unassigned dower right of Almena Brand in the leased premises was extinguished by her death, which occurred May 13, 1892, and her administratrix has no interest in the rent sought to be recovered in this action, and she is an unnecessary party plaintiff,, but the objection Was not sufficiently raised by the answer. The defendants should have pointed out specifically the defect relied on, that the administratrix was improperly joined as a party plaintiff (Berney V. Drexel, 33 Hun, 419), and, not having done so, the objection is waived.

The defendant cannot dispute the title of his landlords, and the grandsons of George S. Brand, if living and retaining their interests in the premises, are not' necessary parties, and, besides, the answer does not specifically raise the question that they should have been joined as plaintiffs.

The assignee of a lease, who enters into possession of the leased premises, is liable for the rent thereof during the time he remains in possession^ but if he assigns his interest and ceases to occupy the premises, his liability for rent is terminated. The decision of this case turned upon whether the defendant occupied the premises under this lease during April, May and June, 1894. The defendant read in evidence the assignment of November 27, 1893, set forth in the statement of facts, and testified that he had not been in possession of the premises, or any part of them, since November 27,1893, at which date he. testified "he. surrendered them to Maycumber,. his assignee. The plaintiffs asserted that this assignment', was merely colorable, and that the defendant remained in possession during the time for which rent was sought to be recovered. This question of fact Was sharply litigated on the trial, and the evidence was quite sufficient to present a question for the jury. If it were true that the defendant’s assignment was colorable, and that he was in fact in occupation' of the premises, through Maycumber. as his agent, he remained liable for'rent.'

The defendant requested the court to charge that, “if it (the assignment of the lease) was executed and delivered with the intent of conveying the estate, that the instrument itself is legally sufficient to accomplish that purpose.” “ The Court: The effect of this instrument I am going to leave to the jury.” The defendant also requested the court to charge: “ That the instrument, Exhibit ISTo. 4 (the assignment of the lease), purporting to be executed by the defendant to Maycumber, is in form and language sufficient to legally transfer all the interest that Aldrich had in the premises in question.” “ The Court: I don’t know about that. I will leave that to the jury. I decline to charge that.” To this ruling the defendant excepted. This was error. This assignment, on its face, was sufficient in form to,transfer all the defendant’s interest in the original lease, and the court should have so charged.

This assignment had no legal effect unless it was delivered by Aldrich to Maycumber and accepted by the lattei1, with intent on the part of 'both that it should take effect according to its terms. If it were so delivered and accepted, it was sufficient, to transfer the defendant’s interest in the premises, provided the defendant surrendered possession of the premises to Maycumber, pursuant to the assignment, and thereafter ceased to occupy the premises.

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

All concurred.

Judgment and order reversed and a new trial ordered, with costs to abide the event.