Opinion
February, 1906.
Spiro Wasservogel, for appellant.
Wallace Van Hoevenberg, for respondent.
A judgment for unpaid accrued water rents, payable by the defendant as lessee under a lease, was recovered against defendant by the plaintiff as assignee of the purchasers of the fee of the leased premises under a referee's sale in partition. Plaintiff's assignors merely obtained a referee's deed which, it may be assumed, carried with it an assignment of an existing lease of said premises.
There was no proof adduced that the plaintiff or his assignors had paid these arrearages or had obligated themselves to pay them. It cannot be said that such assignment transferred any arrearages of rent or water rates payable by the tenant. Such past claims were personalty and, as these claims had accrued prior to the death of the owner from whom those holding title as heirs became entitled to maintain partition, it would seem that the legal representatives of the deceased or their assigns alone could maintain an action for their recovery.
The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.
SCOTT and GIEGERICH, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.