Opinion
April 21, 1952.
Present — Johnston, Acting P.J., Adel, Wenzel, MacCrate and Schmidt, JJ.
On April 5, 1950, the fee owner leased certain garage premises to the tenant for a term of four years, the lease containing a covenant against assignment and subletting without the permission of the landlord. On that day the fee owner assigned the lease to petitioners and also contracted to sell the property to them on an installment basis, title to pass on payment of the full purchase price. In April, 1951, the tenant sold to Metropolitan Distributors, Inc., all of the trucks it used in connection with its business and which it stored in the demised premises. Metropolitan was in the business of renting or leasing trucks. By contract, dated April 19, 1951, Metropolitan leased eight trucks to the tenant at an agreed rental for a period of three years, the contract being irrevocable for the first year, and thereafter the tenant had the right to cancel the contract in giving thirty days' notice. The tenant was to furnish garage space for the trucks so rented, for which Metropolitan agreed to pay the tenant $200 a month, the same rental which the tenant had agreed to pay its landlord under its lease. Metropolitan was to furnish complete garage service. After this contract was made, the tenant did not own any property in the demised premises. The sole business carried on in the garage was the business of Metropolitan. It stored therein not only the trucks rented to the tenant in this proceeding, but trucks rented to others, in addition to servicing therein trucks rented to still others. Metropolitan did not pay for the privilege of storing and servicing trucks it rented to others than the tenant in this proceeding. Metropolitan was, in effect, substituted for the tenant, conferring on it (Metropolitan) the rights to the benefits, and subjecting it to the burdens, of the lease. This is an appeal by the tenant from a final order of the City Court of Mount Vernon in summary proceedings granting possession to petitioners on the ground that the tenant violated the covenant in the lease against assignment and subletting without the permission of the landlord. Final order unanimously affirmed, with costs. In our opinion, there was an assignment by the tenant to Metropolitan in substance, if not in form. Petitioners were entitled to maintain this proceeding as assignees of the fee owner.