Ireland v. Hall (148 A.D. 833, 1912)

Laughlin, J.:

This is- an action by the owner of premises known as 93 Beade street, borough of Manhattan, New York, to recover rent of the premises from the 1st day of March, 1908, to the 1st day of February, 1909, upon the theory that defendant was an assignee of a lease thereof in possession. The premises were leased by the plaintiff to the Edgar A. Wilhelmi Company on the 17th day of January,, 1905, for three years from February first of that year, at a rental of $5,000 for the first year and $5,500 per annum for the balance of the term, payable in equal monthly installments on the first of each month in advance, with a privilege of renewal for two years at a rental of $5,500 per annum, which was duly exercised on November 19, 1906, by Wilhelmi, Hall & Co., the successor to the original lessee. The defendant was vice-president of Wilhelmi, Hall & Co. Wilhelmi, Hall & Co., on the day it exercised the renewal privilege, executed a sub-lease of the premises for the balance of the term to, the New York House Furnishing Goods' Company, to commence January 1, 1907, at a rental, however, of $300 per annum more than that reserved by the plaintiff in the- original lease. The sub-lessee went into possession on the 1st day of January, 1907. At the time'of negotiating this sub-léase, Wilhelmi, Hall & Co. requested the plaintiff to accept the New York House Furnishing Goods Company as the tenant arid tó release it from liability under the lease, which he declined, but he consented to the sub-lease of the premises. By the sub-lease the sub-lessee was obligated to pay the rent to Wilhelmi, Hall & Co., and did pay the first month’s rent to that company, which delivered it all: to the defendant, who sent his personal check to William G..

: Walker’s Sons, the agents of the owner,, and inclosed it with' a-letter in which he informed them, that he was sending it “ asassignee and owner of the léase,,” and requested a receipt in. the name of the owner by them, as agents. This course with, respect to the payment of the rent was continued by the sub- • lessee and by the defendant for thirteen months more, excepting that during this time the sub-lessee paid the rent directly to-the defendant. The receipts given, by the plaintiff’s agents for the rent for January and February, 1907,. recited that it was received from Wilhelmi, Hall & Co. The subsequent receipts recited that the rent was received from H. J. S. Hall for Wilhelmi, Hall & Co., and the receipt for the Croton water rent from June 1, 1906, to May 21, 1907, given in July, 1907, was in the same form. It appears that a few days before, or a few days after the 27th day of December, 1906, a formal "assignment of the lease held by Wilhelmi, Hall & Co., as successor to the original lessee, to the defendant was executed by the president, of the company and delivered to his attorney to obtain the signature of the defendant, and this was subsequently returned by the attorney, who informed the president of the company that the defendant would not sign it; but the attorney was not called as a witness, and the defendant did not testify on this point. It does not appear that it was essential that defendant sign the assignment and the only bearing- his failure to sign it has is on the question as to whether he accepted it. The defendant testified that he collected the rent on a verbal understanding between him and Wilhelmi, Hall & Co., and credited the surplus rent on account of a settlement made between him and the president of said company when the defendant severed his connection with the company by which he became entitled to the rent. The Hew York House Furnishing Goods Company became bankrupt in February, 1908, and failed to pay rent thereafter, and its trustee in bankruptcy took possession and occupied the premises until June, 1908, without paying any rent or making any agreement with respect thereto. When the sub-lessee ceased paying rent, the defendant also ceased paying the plaintiff. In February, 1909, plaintiff instituted dispossess proceedings against the defendant as tenant, for non-payment of the rent. The defendant answered denying that he was a tenant, and thereupon a stipulation was made giving the owner possession without prejudice to the claims of either party with respect to the liability of the defendant to the plaintiff. On April 9, 1907, the defendant on inclosing a check for rent requested plaintiff’s agents to send him a letter from plaintiff, properly witnessed, requesting him to pay the rent to them, and having received no reply thereto, he wrote them drawing attention thereto ten days later. On April 26, 1907¡ defendant wrote plaintiff’s agents, saying that he-.was inclosing; a- letter signed by plaintiff wader date,- of Beeem*. berfifíeen®, requesting’the payment.of the rent-to the-agents; and ashing-them to- have-the letter-witnessed, and returned to: Mm. It does- not- appear to- whom tMs. letter of. plaintiff’s was: addressed, or-when it- was; delivered,, and there) is: no evidence that: any of these communications by defendant to the- plaintiff’s; agents* were answered.- Each month the-plaintiff: sent; a collector to* the' defendantforthe4 rent, and followed, the: matter up persistently when there* was, default in, payment of the rent., Ihe* defendant; always delayed paying' the plaintiff until he received a. cheek fromfhe*sUbdessee-. On December 1% 19QÍ,,in a letter to- plbimiiffs; agents complaining ¡of the: annoyance of having the collector call each* month; and saying that he-would send Ms- check: as, soon as he received a check from, the-sub-lessee; he suggested that plaintiff release- Wiikehni,. Hall