(78 Hun, 443.)

#### KOEHLER et al. v. BRADY.

(Supreme Court, General Term, First Department.

May 18, 1894.)

Assignment op Lease—Waiver op Forfeiture.

A lessor wlio accepts rent from an assignee of the lease thereby waives a provision of the lease that it shall be void if assigned without the lessor’s consent.

Appeal from special term, New York county.

Action by H. Koehler & Co. against James W. Brady. From an order vacating a temporary injunction, plaintiffs appeal.

Beversed.

Argued before O’BRIEN, FOLLETT, and PARKER, JJ.

Emanuel J. Myers, for appellants.

William E. Wyatt, for respondent.

O’BRIEN, J.

The complaint, in its prayer for relief, is susceptible of the view, either that the action is brought upon the theory that one McCabe, as a tenant at will, being in possession of the premises, after notice from plaintiffs, should remove, or, as contended by plaintiffs, that it is to redeem from the summary proceedings, and to compel defendant to receive from them, as mortgagees and assignees of the lease made by the defendant landlord to one Daniel J. Foley, certain alleged arrears of rent, and charges and expenses incurred in summary proceedings. The facts are fully set forth in the complaint, showing that the plaintiffs advanced the sum of $1,800 to one McGin for the purpose of enabling him to pay for the lease and fixtures of a store which McGin had purchased from Wiseman, the assignee of the original tenant, Foley, and that, as security for the sum so advanced, plaintiffs received an assignment of the lease, and a mortgage on the fixtures. Subsequently, McGin, without notice to plaintiffs, transferred whatever interest he had in the property to McCabe, who, having neglected to pay the rent, was ousted in summary proceedings brought by the defendant as landlord. Prior thereto, written notice of the interest which plaintiffs claim in the premises was given to the defendant, which notice contained a request that, if any arrearage ■of rent should ensue, they should be notified, so that they might pay the same; and, before the bringing of this action, they again notified the defendant of their willingness to pay the arrearages of rent, and expenses of the summary proceedings, and demanded *389possession of the premises. The grounds upon which such demand was resisted were—First, that the lease contained a covenant that an assignment thereof should not be made without the consent of the landlord, and that an assignment without such consent had worked a forfeiture; and, second, that the defendant, having got possession of the premises for failure of the tenant in possession to pay the rent, cannot have such possession disturbed.

The answer to the first, upon the facts appearing, would seem to be furnished by the case of Murray v. Harway, 56 N. Y. 337, wherein it was held (headnote) that “where a lease contains a covenant on the part of the lessee not to assign, with a forfeiture of the lease in case of breach, acceptance of rent by the lessor, accruing after an assignment, with knowledge thereof, is a waiver of the forfeiture; and the condition, once dispensed with, is dispensed with forever, so that the assignee can thereafter assign, and can transfer a good title to the lease,” even without the consent of the landlord. It is conceded that the defendant, as landlord, knew that Foley had assigned, and that such assignee subsequently had delivered over possession of the premises to McGrin; but he seeks to evade the force of the waiver which resulted from his acceptance of the rent by saying that he notified him that he would regard him merely as a monthly tenant. This, however, is no answer, because the re-entry under the forfeiture clause could not be made except upon compliance by the landlord with the provisions of law which, in such case, authorize the retaking of the premises. The acceptance of rent, therefore, from an assignee of the lease, having been a waiver of the condition of forfeiture, which was thus gone forever, it remains to determine what force there is in the other position taken by the defendant, that, having obtained possession through summary proceedings, such possession cannot be disturbed.

In view of the notice which the defendant had of the plaintiffs’ interest in the premises, good faith, it seems to us, should have induced him to give plaintiffs the opportunity of paying the rent as it accrued. But, apart from this, if the action can be regarded as one to redeem, then, the unexpired term of the lease exceeding fivyears, the plaintiffs could at any time “within one year after the execution of the warrant pay or tender * * * all rent in arrear,” together with interest, costs, and charges incurred, by the landlord, which would entitle the plaintiffs to possession. Code Civ. Proc. § 2256. Both by the notice, and in the complaint, it is shown that such tender was made; and it is still open for the defendant to accept such amounts, and to place the plaintiffs in possession.

The fact that the complaint, in its prayer for relief, does not, in direct terms, ask for leave to redeem, is not conclusive upon the plaintiffs’ rights, because the court, upon the trial, can give such relief as, upon the proof, it may be shown that the plaintiffs are entitled to. It may be that upon such trial the facts may, to some extent, be varied, and that the defendant may be able to maintain his possession; but we think that sufficient was shown upon the motion to have justified the court in continuing the temporary in*390junction until the action could be tried, because the undertaking which they would be required to give would amply protect the defendant. Our conclusion, therefore, is that the order appealed from should be reversed, with $10 costs and disbursements, and the motion for preliminary injunction granted, upon the plaintiffs giving the usual undertaking, in the sum of $500. All concur.