Opinion
June, 1911.
Robert E. Bergman, for appellant.
Gerard J. Cucco, for respondent.
Action for water rates and repairs to a meter, under a lease by which tenant agreed to pay the water charges, less twenty-five dollars per annum which landlord was to allow. The lease contained a covenant against its assignment without the landlord's written consent.
For the water rates accruing prior to July 14, 1909, when one Marano took possession as the assignee of the tenant, aggregating about twenty-seven dollars and seventy-eight cents, there is no defense; and the plaintiff was entitled to recover at least that amount.
The rent reserved in the lease was $130 a month; but, defendant being unable to pay it, it was reduced by parol to $105 about a year after he went into possession.
About July, 1909, the defendant says he told the plaintiff that he would have to find another tenant to take the lease, otherwise the defendant would have to drop it; that it was then arranged that Marano, the present tenant, should be allowed to take the lease. As a result of this, on July 14, 1909, the defendant assigned his lease and made a bill of sale of his business to Marano, who ever since has occupied the premises and paid the plaintiff rent; but Marano has never paid, and no attempt has ever been made to compel him to pay, the water rates, etc., accruing since July 14, 1909. Receipts for all rents paid by Marano were given in defendant's name as tenant. Defendant is corroborated by another witness in his claim that plaintiff agreed verbally to take Marano in his place as tenant.
Plaintiff's testimony to the contrary is also corroborated.
The mere taking of rent from Marano, the assignee of the lease, would not release defendant from his covenant to pay the rent. People v. German Bank, 126 A.D. 232, 235; Manley v. Berman, 60 Misc. 91, 92; Wallace v. Dinniny, 11 id. 317; Ranger v. Bacon, 3 id. 95, 96.
But the covenant could be discharged by an executed parol agreement for a valuable consideration; and the obtaining of a new tenant, where the old one is unable to pay, is a valuable consideration. Lewis v. Donohue, 27 Misc. 514-517; Weisbrod v. Dembosky, 25 id. 485; Sherman v. Engel, 18 id. 484.
On this question of fact, as to whether plaintiff, in accepting rent from the new tenant, agreed to release the defendant as to all subsequent obligations under the lease, the jury found in favor of the defendant; but, as plaintiff is entitled to recover for the amount of water rates accrued before July 14, 1909, the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
SEABURY and BIJUR, JJ., concur.
Judgment reversed.