#### Michael Casey, Respondent, *v.*Armond E. Wheaton, Appellant, Impleaded with Lewis C. Perry, Defendant.

Third Department,

May 7, 1913.

Landlord and tenant — action for rent — evidence—defense — assignment of lease without written consent of lessor.

After the execution of a lease of a store to P. & W. as copartners, providing that the lessee should not sublet or assign the premises or any part thereof without the written consent of the lessor, the copartnership was dissolved, W. agreeing to pay all firm debts. In an action subsequently brought against the copartners to recover rent they both answered, alleging an assignment of the lease by P. to W. with the knowledge and consent of the lessor, and the receipt thereafter of the rent from W. individually, and that thereafter the lessor consented to a transfer of the lease from W. to one Gr. and accepted from him or his representatives the monthly rentals, and that thereby both defendants were discharged from liability under the lease. It did not appear that the lessor consented in writing to any of the alleged transfers of the lease, and he denied that he even verbally consented thereto.

Evidence examined, and held, insufficient to establish the lessor’s consent to the assignments, and that a judgment of the County Court reversing a judgment of a City Court in favor of the defendant and granting a new trial should be affirmed.

Appeal by the defendant, Armond E. Wheaton, from a judgment of the County Court of Tompkins county, entered in the office of the clerk of said county on the 8th day of October, 1912, reversing a judgment of the City Court of Ithaca in favor of the defendant, and also from an order of said County Court entered in said clerk’s office on the same day reversing said judgment of the City Court and directing a new trial.

*J. J. McGuire,*for the appellant.

*Bert T. Baker,*for the respondent.

*Willard M. Kent,*for the defendant L. C. Perry.

Lyon, J.:

In October, 1908, the plaintiff leased his store in the city of Ithaca to the. defendants, who were then conducting a mer*141chant tailoring business therein, for the term of five years, to commence February 1, 1909, at seventy-five dollars per month, payable in advance, the lease providing that the defendants should not *“*let, sub-let, sell or assign over said premises or any part thereof without the written consent of the party of the first part.” On January!, 1909, the defendants dissolved their said copartnership, Perry transferring to Wheaton all his interest in the partnership business, Wheaton to pay all firm debts, and Perry to work for Wheaton in the business for one year.

The monthly rent due July 1, 1912, was not paid and immediately thereafter this action was brought. Both defendants answered, alleging an assignment of the lease by Perry to Wheaton January 4, 1909, with the knowledge and consent of the plaintiff and the receipt thereafter of the monthly rentals from Wheaton individually, and that thereby defendant Perry was discharged from all obligation under the lease; and that in September, 1911, plaintiff consented to a transfer of the lease from Wheaton to one Griffin, and that defendant Wheaton made such transfer and that thereafter up to and including the month of June, 1912, accepted from Griffin or his representatives the monthly rentals and thereby discharged defendants from all liability under the lease.

The issues were tried before a jury in the City Court of Ithaca and a verdict rendered of no cause of action and a judgment entered thereon, from which the plaintiff appealed to the Tompkins County Court, which reversed the judgment of the City Court, with costs, and ordered a new trial in City Court at a specified date. ' From such judgment and order of reversal the defendant Wheaton only appealed to this court. The decision of the county judge was correct and the judgment and order appealed from should be affirmed, with costs. There was no claim made upon the trial that the monthly rent due July 1, 1912, has been paid by any one, but the defendants sought to avoid liability upon the part of defendant Perry upon the ground that Perry had assigned his interest in the lease to Wheaton and that the plaintiff had accepted Wheaton as the lessee, and to escape liability upon the part of both defendants upon the ground that Wheaton had thereafter assigned the lease to one Griffin with the knowledge and consent of plain*142tiff and that the plaintiff had accepted Griffin as the tenant and received rentals from him. The evidence of an assignment of the lease by Perry to Wheaton is an indorsement upon the back of the lease “ Transferred to A. E. Wheaton, Jan. 1, 09, L. C. Perry,” and of an assignment to Griffin likewise indorsed on the lease “Transferred to George Griffin, Sr., Sept. 2, 1911, A. E. Wheaton.” It nowhere appears that the plaintiff consented in writing to any of the alleged transfers of the lease, and he denies that he even verbally consented thereto. The evidence is insufficient to establish his consent thereto and that he agreed to accept the alleged assignee as his tenant or to look to him for the payment of the rent and release the defendants or either of them, or that there was any consideration therefor. All through the trial there were erroneous admissions of evidence under the objection of plaintiff’s attorney. One of the most marked was the admission of the judgment roll in the Supreme Court action of said Griffin against defendant Wheaton to which the plaintiff herein was not a party, in which the subject at litigation was whether Griffin should be released from an agreement to purchase the stock of goods in the leased store upon the ground of misrepresentation upon the part of Wheaton as to the quantity and quality of the goods in the store and as to the amount of the unpaid bills, and as to whether the agreement of purchase was afterwards rescinded. This judgment roll was admitted in evidence under plaintiff’s objection, then allowed by the court to be withdrawn, then reintroduced by defendant “for the purpose of contradicting this witness, his appearance, his attitude and what he has sworn to, and the whole phase of the witness.” Plaintiff objected and the court received it “for the purpose of refuting only the questions testified to by Mr. Griffin,” which at best were merely collateral, to which plaintiff excepted.

Upon the argument of this appeal there was some discussion as to the power of the Appellate Division to review the decision of the County Court to the effect that the verdict was against the weight of evidence. We held in *Kilts*v. *Neahr*(101. App. Div. 317) that this court has the power to review the action of the County Court in refusing to exercise its discretionary power *143to grant a new trial in an action brought in Justice’s Court, and that decision does not seem to have been questioned.

The judgment and order appealed from should be affirmed.

All concurred.

Judgment affirmed, with costs.