Durand v. . Curtis , 57 N.Y. 7 ( 1874 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The defendant cannot be held liable for the rent claimed as assignee merely of the lease. If he became such assignee, he had assigned the term and transferred the possession of the premises long before this rent accrued; his liability as assignee continued only so long as the privity of estate continued; and when that ceased his liability ceased. (Jacques v. Short, 20 Barb., 269; Davis v. Morris, 36 N.Y., 569; Astor v.L'Amoreux, 4 Sandf., 524; Carter v. Hammett, 18 Barb., 608.)

He can, therefore, be made liable for this rent only upon the theory that he in some form assumed to pay it. He and Gould formed a copartnership, the agreement in reference to which was reduced to writing on the 3d day of March, 1866. The partnership was to commence March 1, and continued for one year from April 1, 1866. It was provided that each partner was to put into the business, as capital, $4,000, and that each should be equally liable for "all debts and liabilities suffered or created by or on account" of the firm business. The lease was not mentioned in the written agreement; and if we look to that alone, the firm was bound to pay the rent only during the term of the partnership. Further than that, the rent was not a partnership debt. But it is claimed, on the part of the plaintiff, that during the negotiation for the formation of the partnership, it was agreed, by parol, between Gould and defendant that, in consideration that the former would put the lease into the partnership, the rent should, for the whole term of the lease, be regarded as a partnership liability, and that hence each member of the firm became equally liable for it, under the written agreement, as one of the debts created on account of the firm business. Or, in other words, the claim is that the rent for the whole term became a firm debt, by this parol agreement. I cannot assent to this claim. The balance of the term was for more than two years, and such a term could not be created or assigned by parol. (2 R.S., 135, § 8.) Neither could the defendant or the firm legally agree, by parol, to pay the rent for the whole term, as such an agreement could not, by its terms, be performed within a year. (2 R.S., 136, § 2.) No effect can, therefore, be given to the alleged parol agreement. And as there was nothing in the written partnership agreement as to the rent, such rent did not become a partnership debt or liability. Hence, this rent was not a liability which the defendant assumed by the agreement of December 5, 1866, whereby he took the firm property and agreed to pay the firm debts.

I can, therefore, perceive no theory upon which the defendant can be held liable for the rent claimed; and the judgment must be affirmed, with costs.