Opinion
Argued June 3, 1936
Decided July 8, 1936
Appeal from the Supreme Court, Appellate Division, First Department.
Emanuel H. Reichart for appellant. Julius C. Krause and Henry Sillcocks for respondent.
James A. Gifford, Charles L. Woody, Herbert P. Carter and C. Lansing Hays, amici curiae.
We do not reach the question of what defendant's obligations, if any, would have been had there been a mere technical surrender of the master lease and nothing more. The terms of the agreement of September 13, 1930, clearly and as matter of law disclose an intent that the subleases were to be kept alive and that the owner should stand in the shoes of the defendant's immediate lessor. In effect there was an assignment of the subleases. Any narrower interpretation would be inequitable. Under such circumstances the doctrine of merger is inapplicable. ( Beal v. Boston Car Spring Co., 125 Mass. 157; Appleton v. Ames, 150 Mass. 34; cf. 13 Columbia Law Rev. 245.)
The order should be affirmed, with costs, and the question certified answered in the negative.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, CROUCH, LOUGHRAN and FINCH, JJ., concur.
Order affirmed.