Opinion
Submitted February 17, 1933 —
Decided April 27, 1933.
On appeal from the Supreme Court.
This case was referred to Circuit Court Judge Dungan, who filed the following opinion:
"The plaintiff in this case became the lessee of the property in question from the Bake-Rite Baking Company under a lease dated May 20th, 1925, for a term of one hundred and five years, subject to other leases then in existence on the property. The present plaintiff on December 15th, 1925, leased to the Central Cafeteria space in this building at 183 Market street, Central Cafeteria having been previously a lessee of the property under one Stavinweiss, Incorporated, at 185 Market street, the lease of which was assumed by the Niagara Realty Company when it took possession under the lease from the Bake-Rite Baking Company, so that by the lease which was made by the plaintiff to the Central Cafeteria and the lease which the Central Cafeteria had obtained from Stavinweiss on May 31st, 1922, the Central Cafeteria Company became the tenant of the Niagara Realty Company of Nos. 183 and 185 Market street.
"Thereafter, on September 8th, 1927, the Central Cafeteria assigned these two leases — that is, the lease from Stavinweiss, Incorporated, for 185 Market street, and the lease from the Niagara Realty Company for 183 Market street to Samuel Michael, the defendant in this case. On the same day Michael sublet the premises to the Central Cafeteria for ten years.
"In December, 1930, the Central Cafeteria became insolvent, and a receiver was appointed. At the receiver's sale, Michael became the purchaser of the assets of the Central Cafeteria and the lease held by Central Cafeteria, which was a lease from Michael. Thereafter, on December 29th, 1930, Michael sublet to the Central Buffet, another corporation, and authorized it to pay rent to his landlord, the Niagara Realty Company. Those are the words in the lease. The transactions subsequent to September 8th, 1927, when the Central Cafeteria assigned its lease to Michael, are recited only for the purpose of showing that so far as the lease between the plaintiff in this case and the Central Cafeteria, which had been assigned to Michael, there had been no change in status so far as the lease is concerned with the plaintiff in this case — that is, that the lease continued with all its provisions in force from December 15th, 1925, when the lease was made between the Niagara Realty Company and the Central Cafeteria. There was in that lease a provision that in case of receivership the plaintiff had the right to cancel that lease but, of course, that meant the receivership of the person who was the holder of the lease from the plaintiff.
"There was some attempt by plaintiff, as appears by the proofs on the part of the defendant in the case, to cancel the lease, on account of the receivership proceedings of the Central Cafeteria, in the latter part of 1930, but the plaintiff had no right to cancel that lease, which was only a sublease between Michael and the Central Cafeteria, with which the plaintiff in this case was concerned only incidentally. There was no such cancellation, and the defendant did not regard the cancellation, which was attempted to have been made by the Niagara company, as a cancellation of the lease of which he was the assignee.
"The defendant, after his purchase of the assets of the Central Cafeteria at the receiver's sale in the latter part of 1930, continued to regard himself as the lessee of that property, by subletting to the Central Buffet, a new concern, and in that lease called the Niagara Realty Company his landlord, because in that lease he authorized the Central Buffet "to pay the rent to his over landlord, Niagara Realty," so there was no cancellation.
"The attempted cancellation, if it be an attempted cancellation, by the Niagara, had no effect upon the lease in question. The proofs which have been offered in evidence on behalf of the defendant fail to change the situation, as appears by the written documents in this case, and if the same proofs and documents had been produced before a jury in this case, it would have been the duty of the court to have directed a verdict in favor of the plaintiff, and that will be the order of the court. Judgment will be entered in favor of the plaintiff and against the defendant for $3,800, with interest from December 1st, 1931, at six per cent.
"Defendant's counsel prays an exception to this ruling of the court.
"Exception noted as ground of appeal."
For the appellant, Bilder Bilder ( Walter J. Bilder, of counsel).
For the respondent, Israel B. Greene.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered in the Supreme Court by Circuit Court Judge Dungan, to whom this case was referred.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 15.
For reversal — None.