Opinion
Argued October 16, 1885
Decided November 24, 1885
Edward Mitchell for appellant.
David Thurston for respondent.
Between Mrs. Van Beuren, the original lessor, and the city of New York, the under-tenant of Christian F. Dickel, there was neither privity of estate nor privity of contract, and it was upon this principle that both courts decided against her. We find no error in their conclusion. Except for the agreement of March 21, 1877, Mrs. Van Beuren would have been entitled to no portion of the money becoming due under the lease from Dickel to the city of New York, and the appeal challenges only that portion of the judgment which in effect determines that she must abide by its conditions. The learned counsel for the appellant seems to give no force to this agreement, but puts his argument upon the general equity of the landlord to be paid from rent in the hands of a receiver before its distribution among other creditors. That equity is obvious. Rent reserved to the landlord must be paid as a condition to its continued receipt from an under-tenant. If the original lessor is not satisfied, the under-tenant may be dispossessed, and so rent ceases. But the original landlord may be satisfied in other ways than by a compliance with the terms of the lease; and that, so far as the rents are concerned, is the case here. If we assume that under other circumstances she might have been entitled to be paid from the rents owing by the under-tenant; that upon sale of the leasehold interests the arrears due would have been retained for payment to her, it cannot be denied that she might waive this preference, and that her consent to the appropriation of those rents would be sufficient as against any subsequent or adverse claim by her.
It is also argued that the plaintiff as mortgagee had no lien upon the rents. That question hardly concerns the appellant. It was one of the terms of the agreement referred to, that after payment of the sums specified and the portion of rent to her, the rents should be re-assigned to Charles W. Dickel, by whom the lease had been transferred to the Messrs. Mitchell. Although a party to the action he makes no objection, and if he has any right it cannot be enforced by the appellant. So far as her rights are concerned in any question properly arising on this appeal, we think they were established by that agreement and that the judgment appealed from is in accordance with it. It is, therefore, unnecessary to consider the propositions submitted in her behalf, and which, it must be conceded, would have great force if that agreement had not been made.
The judgment appealed from should be affirmed.
All concur.
Judgment affirmed.