Dierig v. Callahan , 74 N.Y.S. 1124 ( 1901 )

Conlan, J.

The action was to recover "a sum of money stipulated in a lease held by plaintiff under a bill of sale of the unexpired term. The lease contained a clause that if the premises were sold during the term the lessor would pay to the lessee the sum of $500 in case possession of the premises should be demanded. The lease was-to one Lina Kiehl, who died during the term, and her administratrix sold the lease to the plaintiff, and she entered into possession of the premises and continued the payment of the rent reserved, the owner receiving from and receipting to her therefor. Upon a former trial the defendant had judgment which was affirmed by this court at General Term, and upon appeal to the Appellate Term that court reversed the judgment and ordered a new trial. The case in the Appellate Term is reported in 35 Misc. Rep. 30; 70 N. Y. Supp. 210.

It was contended by the defendant upon the new trial, and now upon this appeal that the assignment of the lease, as claimed by plaintiff, was never accepted by or assented to by the defendant, but in the opinion reversing the former judgment the court said: “ But, aside from the fact that the forfeiture of the lease, because of the assignment thereof was not pleaded, the omission of defendant’s consent was immaterial, since it is elementary that an assignment of a lease in violation of restrictions, such as here appear, is nevertheless effectual, unless averted by the lessor’s reentry." Eone such appeared or was claimed on the trial.” Citing Wood Landl. & Ten., § 530, and cases, cited in note 6. That court also held that the payment of the $500 was a condition precedent to the right to possession under the notice required by the lease, and that the covenant to pay was a covenant real, and forcible by the assignee of the term.

Under the distinct rulings, as thus laid down by the Appellate Term, we are of the opinion that the issues were correctly determined upon the trial, and that the judgment and order appealed from must, therefore, be affirmed, with costs.

Hasgall, .J., concurs.

Judgment and order affirmed, with costs.