Supreme Court, Appellate TermMay 1, 1909
63 Misc. 334 (N.Y. Misc. 1909)
63 Misc. 334117 N.Y.S. 110

May, 1909.

Charles P. Hallock, for appellants.

Rosenthal, Steckler Levi, for respondent.

This action is brought to recover one month's rent alleged to be due under a written lease. The defendant Otto Kuhlmann is sued as lessee and Emma Kuhlmann as surety. The defendants urge two defenses: (1) Surrender of the lease by the assignee of the lessee and an acceptance of such surrender by the landlord; and (2) that, so far as Emma Kuhlmann, the surety, is concerned, the lease was materially changed and was assigned without the consent of the surety, and that she thereby became released.

The plaintiff's grantor, Strauss, on November 24, 1902, leased the store on the ground floor of the premises in question to the defendant Otto Kuhlmann, for the term of ten years and six months, at the annual rental of $1,200 for the first three years and six months, and $1,350 thereafter, said rent being payable annually under the terms of the lease. The defendant Emma Kuhlmann signed an agreement of guaranty which was indorsed upon the back of the lease. The lease contained the following clause: "4th. That the tenant shall not assign this agreement, or underlet or underlease the premises, or any part thereof, or make any alterations on the premises, without the landlord's consent in writing;"

On January 19, 1905, Otto Kuhlmann, the lessee named in the lease, assigned said lease to William H. Gerdes by a written assignment. The assignment was made without the consent of Strauss, the landlord, and is claimed to have been made without the knowledge or consent of the surety, Emma Kuhlmann.

On January 31, 1906, Strauss, the landlord, sold and conveyed the premises to Rappaport and Kolbert, and on the same day assigned the lease to them.

On May 9, 1906, Rappaport and Kolbert made a new lease to William H. Gerdes. This lease recites the lease of Strauss to Kuhlmann and the conveyance of Strauss to Rappaport and Kolbert and the assignment by Kuhlmann to Gerdes. The lease recites, as does the lease to Kuhlmann, that the portion of the premises rented to Kuhlmann is "the store on the ground floor and front basement of the premises known as No. 1695 Madison Avenue." It then recites that Rappaport and Kolbert and Gerdes "are desirous of entering into an agreement of letting of the rear portion of said premises, in addition to the premises described in the aforesaid lease." This lease contained the following clause: "It is hereby agreed between the parties hereto that, in every other respect, all the terms and agreements contained in the lease above referred to are to be made and hereby are made part of this lease, and form part of this lease, and are read into this lease with the same force and effect as if each and every condition and agreement contained therein had actually been inserted into this lease, without any change or alteration whatsoever." It is upon this clause in the lease that the applicant predicates his contention that a surrender of the Kuhlmann lease was effected by making a new lease of the same premises to Gerdes.

The difficulty with this contention from the appellants' standpoint is that it is perfectly evident, from the terms of the lease of May 9, 1906, to Gerdes, that the same premises were not leased. This lease recognized that Gerdes by assignment from Kuhlmann had acquired the premises demised to Kuhlmann and, "in addition to the premises described in the aforesaid lease," it demised to Gerdes "the premises in the rear of the store of the premises."

The mere fact, that this lease provided "that in every other respect" the terms and conditions of the lease to Kuhlmann should be considered a part of the lease to Gerdes, does not justify the contention that the same premises were intended to be demised.

The lease to Gerdes makes it perfectly clear that it recognized him as assignee of the premises demised to Kuhlmann and it also demised to him an additional portion in the same premises which was not covered by the lease to Kuhlmann.

To adopt the appellants' contention would do violence to the express language of the lease to Kuhlmann and the lease to Gerdes. The appellants also contend that the assignment of the lease to Kuhlmann, by Kuhlmann to Gerdes, and by Strauss to Rappaport and Kolbert, and by Rappaport and Kolbert to the plaintiff, without the knowledge and consent of the defendant Emma Kuhlmann, the surety, releases her from liability upon her guaranty.

If these several assignments were made with the consent of the landlord, as I think they were, and not in violation of the terms of the lease to Kuhlmann, they did not operate to release the surety; and the fact that she had no knowledge of them and did not consent to them is immaterial. Morgan v. Smith, 70 N.Y. 537. If the assignment by Kuhlmann to Gerdes was made in violation of the clause in that lease against assignment without the written consent of the landlord, I do not think that, under the terms of the guaranty, the surety can take advantage of this breach of one of the covenants of the lease by Kuhlmann.

The guaranty provides as follows: "I do hereby covenant and agree to and with the party of the first part above named and her legal representatives that if default shall at any time be made by the said Otto Kuhlmann in the payment of the rent and performance of the covenants in the within lease on his part to be paid and performed that I will well and truly pay the said rent or any arrears thereof," etc. The surety should not be permitted to avoid her liability upon the guaranty on the ground that the tenant violated the covenant against the assignment of the lease without the landlord's consent, when by the very terms of the guaranty she made herself responsible for the "performance of the covenants contained in the within lease."

The judgment is affirmed, with costs.

DAYTON and LEHMAN, JJ., concur.

Judgment affirmed, with costs.