Carter & Carter v. Hammett & Balch , 12 Barb. 253 ( 1851 )

By the Court,

Mitchell J.

In Armstrong v. Wheeler, (9 Cowen, 88,) the defendant was sued for rent, as assignee of a lease. Parol proof was given that the defendant had bought the lease from the lessee, and that he had continued in possession or offered to sell the lease, and had rented out the property until the time when the rent was demanded. The supreme court held the defendant was liable as assignee. They said “ when the action is brought against the defendant as assignee of a term, and the issue is on the assignment, it will be enough for the plaintiff to give general evidence from which an assignment may be* inferred, as that the defendant is in possession or has paid rent. The defendant may show that he is not assignee, but only under-tenant to the lessee.”

If it were nesessary for the plaintiff to prove that the defendant was assignee under an instrument valid as between assignor and assignee, then such title (at least in leases for more than one year,) could only be in writing, and the rule would apply that the party shall produce the best evidence in his power; and so the plaintiff could "not prove the defendant to be assignee exr eept by producing the assignment, or accounting for its non-production. But this has never been required of the landlord. The reason of the rule probably is that the defendant is shown to be in possession under the lease, and he and the lessee agree that he shall remain there. The landlord, therefore, can not disturb his possession; for as he is in under the lease he is in by permission of the landlord. Whether his title is good, or not, as between him and the lessee, is immaterial to the landlord. That is a matter between the occupant and lessee alone. If they choose to. transfer' title by an informal instrument, or by parol only and a transfer of possession, that would be a contract which a court of equity might enforce, and which no third person (unless under peculiar circumstances,) could dispute. The occupant being thus in possession, in a way that the landlord can not disturb, and having all the benefits of an actual assignee, is estopped from setting up that he is assignee only by parol agreement and not by a valid written instrument. But if he is in only as under-tenant, he may show that fact.

The question, therefore, in a suit by a landlord, for rent, against one alledged to be assignee, is not whether the defendant is assignee by a valid instrument as between him and the lessee, but whether he has held himself forth to the landlord, or to the world, as such: and is analogous to the case of one not interested in a firm, yet holding himself out as a partner in it, and so making himself liable as a partner, though he should clearly prove that he Avas no partner. As such Midirect proof is sufficient to establish the relation of assignee, the like proof, and comparatively slight, may show its termination, and that a neAV occupant was received as assignee.

The referee in this case found for the defendant, because the evidence showed affirmatively that there was no assignment in Avriting; although he found that the lease was handed over and transferred to the defendants—by parol as is to be inferred— and that they occupied or rented out the premises. In this the referee erred.

The defendants however insist that the pleadings and evidence shoAV that they were not assignees, but tenants of the plaintiffs, and that their tenancy had expired. The evidence is not very clear either way. Parol evidence of a written assignment by the lessees, of their property, was received. This was irregular ; as the assignment itself should have been produced, and it is left quite uncertain Avhether that assignment actually included the lease or not. If it were supposed to be included only because the lessees made a general assignment of their property, the supposition Avas erroneous; for a lease is deemed property, or not, in such an assignment, at the election of the assignee, until he enters under it, or by some other act, or omission to act, determines his right to elect. Instead of being property, it may be a heavy incumbrance; or a debt instead of a benefit.

From this parol proof of a general assignment to Breden and Hovey it was inferred that the lease was assigned to them, and so it was argued that the lease Avas not assigned to the defendants. The conclusion was unsupported, until it should be shown that the lease passed to and was accepted by Breden and Hovey; and even then it might have passed from them to the defendants.

[Hew-York General Term, December 1, 1851.

Without examining, minutely," the evidence it was left uncertain whether the defendants meant to be understood, and caused the landlords to understand, that they entered as the tenants of the latter, or under the old lease. This matter being left so uncertain, on the evidence, it is to be considered there is a direct allegation by the defendants in their answer that they entered not under any assignment of the lease, but that they occupied the premises as the tenants of the plaintiffs until the 18th of April, 1848, and that after that time George Seely entered on the premises and occupied them as the tenant of the plaintiffs, and that the plaintiffs do not deny that the defendants and Seely so held as tenants of the plaintiffs, but only repeat that the lessees assigned to the defendants—thus leaving the allegation of tenancy uncontroverted and admitted. This assumption is at least strong evidence that the defendants were tenants, where the proof is uncertain on that subject; if it be not conclusive as a matter of pleading, which, under the circumstances, it perhaps may not be.

But against this, on the other hand, is the special report of the referee, finding that the lease was assigned to the defendants, though not in writing.

To remove these difficulties the report should be set aside and a new trial granted; the costs of appeal to abide the event; and the plaintiffs to have liberty, on an affidavit showing that in fact they always regarded and treated the defendants as assignees of the lease and not as their tenants, to amend their reply on payment of such costs which have accrued since the reply was put in, as the judge at special term shall direct; and on waiving the costs in his favor accrued since the reply was put in.

Edtitonds, Mitchell and King, Justices.]