Moffatt v. . Smith , 4 N.Y. 126 ( 1850 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Payment of rent by the defendant, Smith, to the plaintiff, was sufficient prima facie to show that Shepherd's occupancy of the demised premises was under Smith, the defendant; and the case stands therefore, as if Smith had himself been the actual occupant under the lease from Lawrence.

But the defendant insists that this action can not be maintained in Moffatt's name, because he was not the assignee of the reversion as well as of the rent. It has been settled in England and here, that the assignee of the rent alone, without the reversion, may recover in his own name in an action of debt. (Allen v. Bryan, 5 Barn. Cress. 512; Ards v. Watkin,Cro. Eliz. 637, 651; Demarest v. Willard, 8 Cowen, 206;Willard v. Tillman, 2 Hill, 277.) This was on the ground, formerly, that after attornment by the tenant, the privity of contract was transferred to the assignee of the rent. (Robbins v. Cox, 1 Levinz, 22; 5 Barn. Cres. 512, n.) Attornment by the tenant is now unnecessary. (1 R.S. 739, § 146.) The consent of the lessee was however, in this case, proved by the payment of rent to the lessor's assignee. The lease from Lawrence to Smith, together with the lessor's assignment to the plaintiff, and the payment of rent to the plaintiff, established the relation of landlord and tenant between the plaintiff and the defendant, and brought the case within the terms of the statute which gives the action for use and occupation to any landlord where the demise is not by deed. The plaintiff, by the lessor's assignment became the landlord, under whom the defendant held the demised premises, and the defendant could not dispute his title. The lease of the 18th of April, 1845, and the assignment thereof, were properly admitted for the purpose of showing this relation between the parties; and the previous lease of the 11th of January was also properly received in evidence, to show the duration of the term, in relation to which the latter lease referred to the former.

The offer by the defendant to prove the premises out of repair, was rightly rejected. There was no agreement or obligation on the part of the lessor to repair the premises, and the plaintiff was therefore entitled to recover the amount of rent agreed to be paid.

Shepherd's declaration that he was Smith's tenant, was perhaps not evidence of that fact as against Smith; but if it had been struck out, the case would have been so much the worse for Smith: because it would then have appeared positively, that Shepherd was Smith's tenant. If the defendant had moved to strike out that part of Hutchinson's testimony in which he said that Shepherd was Smith's tenant, he would have been entitled to the effect of his motion. But if that had been the motion, the plaintiff probably would not have objected; and in that case, if the proof had been material he might have supplied it by other evidence. But it was not material. The payment of rent by Smith to the plaintiff was sufficient, of itself, to show prima facie that Shepherd was the occupant by Smith's permission. The decision of the court below, therefore, did not operate to the prejudice of the defendant, nor was it erroneous. The judgment below must be affirmed.

Judgment affirmed.