#### Peter Ayen, Respondent, *v.*Joseph Schmidt, Appellant.

(Supreme Court, Appellate Term, Second Department,

May, 1913.)

Landlord and tenant — lease — subletting by tenant — release.

One month after the making of a three years’ written lease of a butcher shop and basement at an annual rental payable in annual instalments the tenant sublet the basement and two months thereafter assigned his lease. The assignee entered into possession, received the rent from the sub-tenant and paid the full amount of the rent reserved in the lease up to February 1, 1912, when he left the shop and took out of the windows for use in a new store certain marble slabs which, under the terms of the lease, would have to be returned to the landlord at the end of the term. As the result of negotiations, the assignee of the lease paid the landlord a certain amount in cash in excess of the March rent and the value of the marble slabs and received a general release from all claims due or thereafter to become due, and in the following month the landlord received the keys. Held, that a judgment in favor of the landlord against the original tenant for the amount of the rent for the months of March, April, May and June, 1912, must be reversed.

Appeal, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, sixth, district.

Charles A. Wilson, for appellant.

John F. Strieker, for respondent.

Crane, J.

The judgment rendered for the plaintiff herein for the amount of rent due under the lease made to the defendant for the months of March, April, May *671and June of 1912 must be reversed and judgment given for the defendant. The case was submitted largely upon an agreed statement of facts from which the following appears: By an instrument in writing the plaintiff leased the butcher store and basement, 336 Sixth avenue, to the defendant for a period of three years from May 1, 1911, at the annual rental of $720, payable monthly, and wherein the lessee covenanted to pay the rent as it became due. In June, 1911, the defendant by writing leased the cellar or basement to one De Vita for $12 a month, and in August, 1911, assigned the lease to Charles Bossong in words following :

> *‘ ‘*For valuable consideration I do hereby assign the within lease to Charles Bossong for balance of term.

> “ Dated, *April*24, 1911.

> “(Signed) JOSEPH SCHMIDT.

> ‘‘ In the presence of

> “Joseph Unlander.”

Bossong entered into possession and received rent from De Vita and paid the full amount of rent reserved in the lease to the plaintiff up to February of 1912. In that month he moved his things to a store across the way, taking with him the marble slabs, valued at about $100, out of the store windows for use in his new store. These slabs were part of the realty which, under the terms of the lease, would have to be returned to the lessor at the end of the term, for the lease contained the following provisions: “And it is agreed that if any rent should be due and unpaid or if default shall be made in any of the covenants herein contained then it shall be lawful for the said party of the first part to re-enter the said premises and to remove all persons therefrom * * * and at the expiration of the said term the said party of the second part will quit *672and surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted. ’ ’ The plaintiff was the party of the first part and the defendant the party of the second part.

After the assignee, Bossong, had moved his things to another store the March rent was not paid, whereupon the plaintiff entered into negotiations through his lawyer and representative with Bossong to bring about a settlement for the removal of the marble slabs; there was also some talk about the rent which resulted in Bossong paying to the plaintiff $250 in cash and receiving a general release for all claims due or thereafter to become due. There was only one month’s rent of $60 due at the time, and the testimony is that the marble slabs were worth about $100. Thereafter, in April, 1912, correspondence was exchanged between Schmidt, the lessee, and the plaintiff’s lawyer which resulted in the keys being received by the plaintiff.

The plaintiff brought this action against the defendant, his lessee, to recover the rent for the months of March, April, May and June of 1912, and, as above stated, has recovered a judgment below. The defendant was liable on his covenants in his lease to pay the rent as it became due and could not escape such liability by his assignment to Bossong. Bossong, as assignee of the lease in possession, was liable through privity of estate for the rent so long as he remained assignee, but he could relieve himself of this liability by reassignment of the lease to another. Whether he could escape liability by the mere abandonment of the premises without reassigning the lease is questionable, but there is no evidence in the case that he did abandon the premises, the agreed statement of facts being that he left the store and moved across the street. The plaintiff could have sued the defendant, Schmidt, for *673Ms rent or the assignee, Bossong, at his election, but could have but one satisfaction. These statements of law find support in the following cases: Ranger v. Bacon, 3 Misc. Rep. 95; Wallace v. Dinniny, 11 id. 317; McKeon v. Wendelken, 25 id. 711; Moskowitz v. Ditingen, 48 id. 543; McAdam Landl. & Ten. (4th ed.), 874; 1 Wood Landl. *&*Ten. (2d ed.), 740, § 336.

The lessor cannot receive rent or the equivalent thereof from the assignee and also recover from the lessee. Likewise, if for the failure to pay he re-enters the premises under the terms of the lease he can no longer hold either for the rent. If payment by the assignee relieves the lessee, a release of payment for rent due or to become due would also release the lessee. Bossong having an assignment of the lease, and removing to another store before the term expired and not reassigning the lease nor having abandoned the place, might have been liable for the accrMng rent; about this there might have been some question. Dorrance v. Jones, 27 Ala. 630; Sanders v. Partridge, 108 Mass. 556. The plaintiff accepted from him for a general release $250, wMch was in excess of the value of the slabs taken and of the rent then due. It was evidently a release, as it states, from any further liability for rent under the assigned lease and should thereby release the lessee and the assignor, and tMs conclusion is further supported by those acts which amounted to a re-entry by the lessor under the lease and an election to terminate. Upon the payment of rent the plaintiff, under the terms of the lease, above quoted, had the right to take possession of the premises and end the lease. He exercised tMs right when he demanded from the assignee immediate payment for damage to the leased property, and took the keys to the place. Schmidt, the lessee, was liable to restore the premises at the end of three years in as good condition as he *674had received them; during that period he could have removed the marble slabs or made changes, provided he restored the premises to their original condition at the end of his term. The lessor would have no immediate remedy for damages, although under certain conditions he might re-enter and oust the tenant or enjoin him. There can be, however, little question but what the lessee would have the right to make such changes as could be readily restored or replaced. That the lessor sought relief at once and accepted pay from Bossong for the changes in the removal of the slabs indicates that the term was at an end and the premises were to be restored.

The injustice of the plaintiff’s accepting full value for the marble slabs which constituted a material part of the demised premises and then compelling the lessee to pay the full amount of rent reserved by the lease for the store, which included the marble slabs, is apparent as soon as stated. If the plaintiff had leased two rooms to the defendant and taken from an assignee full payment for the value of one which the assignee had demolished, could he collect on the lease thereafter the rent reserved for the two ? I think not. De Vita upon such re-entry became a tenant of the plaintiff.

This judgment should be reversed and, as there are no disputed questions of fact, judgment should be rendered for the defendant, with costs of the trial and appeal.

Kapper and Kelby, JJ., concur.

Judgment reversed, with costs.