Grauer v. Rudinsky

MacLEAN, J.

One Warner, having from the plaintiffs a lease of a loft to expire February 1, 1908, sold his fixtures to the defendants, agreeing to move out and let them have the place. Warner moved out in the middle of January, and the defendants moved in without consulting the owners, the plaintiffs, whose action was brought for use and occupation, but amended on the trial to* accord with the proof. Warner not paying the rent on January 1st, when it was due, the plaintiffs’ collector, calling for it about the 12th and finding the defendants in possession, demanded it of the defendants, who replied they had nothing to do with the plaintiffs, and refused payment.

Neither the balance of the term, nor the term itself, being for a year, it might be transferred by any act evidencing such a purpose. Although both Warner and his successors in estate denied in words that there was any assignment, possession of the premises was actually transferred pursuant to their agreement; the lessee vacating, and they to whom he ceded taking over, the loft, wherein the latter remained, and whereof they enjoyed the benefits until the end of the term demised. Thus the lessors might, at their option, sue and recover, either from the lessee for the month or from his successors, treated as assignee, for the period of their occupancy under the agreement with the lessee. The judgment, upon the facts conceded and upon the evidence, should have been for the plaintiffs, instead of for the defendants.

Judgment reversed, and new trial ordered, with costs to the appellants to abide the event. All concur.