People ex rel. Elston v. Robertson , 39 Barb. 9 ( 1862 )

By the Court,

Ingraham, J.

The relators complain of the decision of the justice, in this case, on the ground that the respondent had no title in the land which would enable him to obtain possession thereof for non-payment of rent, under the statute.

One James Wood had a lease of the premises, which had been assigned to him. This lease was not put in evidence. The affidavit on which the proceedings were founded stated that the lease was for ten years, to commence on the 1st day of May, 1852, and to end on the 1st day of May, 1862. While holding this lease, Wood underlet to the relators the premises from the 1st day of May, 1856, to the 1st day of May, 1862. After this lease, Wood assigned the original lease to John F. Robertson, who assigned to the respondent. After the assignment the relators paid rent to the respondent, as landlord. This proceeding was to obtain possession of the premises, for the non-payment of rent. The main question in the case is, whether the under-lease operated as an assignment of all the interest of Wood in the premises.

In Post v. Kearney, (2 N. Y. Rep. 394,) it was held that an under-lease by the lessee of premises, for the whole unexpired term, which contained a covenant to pay rent and surrender the possession of the demised premises at the end of the term, to the original lessee, did not operate as an assignment, hut as an under-lease. The same was Reid in Piggot v. Mason, (1 Paige, 412.) And in Linden & Fritz v. Hepburn, (3 Sandf. S. C. Rep. 668,) the court held that such an under-lease reserving the right to re-enter was a sub-lease, and not an assignment, and that the parties giving the under-lease could re-enter for a breach of the condition, although there was no reversion remaining in them. (See also Doe ex dem. Freeman v. Bateman, 2 B. & Ald. 168.)

Even if the rule were otherwise, the facts in this case are not so proven as to enable the relators to avail themselves of it. They 'have seen fit to rely on the statements in the affidavit, without putting, in evidence the leases on which the question arises. By this affidavit it appears that the original lease expired on the 1st of May, 1862. This would be construed as expiring at 12 o’clock of that day. The under-lease is stated to be from the 1st of May, 1856, to the 1st of May, 1862. This would expire at 12 o’clock at night of the 30th of April; and there is in fact a period of time between the end of the 30th of April and 12 M. of the 1st of May, during which the respondent had the right of re-entry and of possession of the premises.

[New York General Term, November 24, 1862.

Ingraham, Leonard and Barnard, Justices.]

Under either view of the question, the respondent is entitled to judgment.