June Term, 1902.
Samuel Hoff, for the appellant.
August P. Wagener, for the respondent.
The action is brought by plaintiff to foreclose a mortgage on a lease which had been made by the defendant Lauter, the landlord, to one Patrick Quinn and by the latter assigned to Edwards who mortgaged it to plaintiff. One of the covenants of the lease provided that the lessee "will not assign this lease nor let or underlet the whole or any part of the said premises * * * without the written consent" of the landlord "under the penalty of forfeiture and damages."
Lauter was made a party defendant because of the covenants in the lease, but no personal judgment was asked against him. In his answer, among other things, he alleges that he did not consent to the assignment or the mortgage of the lease, and then avers that by the assignments the lease became forfeited. To this separate defense the plaintiff demurred, but the demurrer was overruled, and from the interlocutory judgment thus entered this appeal is taken.
The single question presented is whether a violation of a covenant in a lease not to assign works a forfeiture of the lease without further action on the part of the landlord. The authorities, as we read them, are to the effect that an assignment without the consent of the landlord renders the lease not void but voidable. If the landlord chooses to avail himself of the breach he can do so by re-entry or by enjoining the tenant from assigning, or he can recover damages for breach of the covenant. As said in Chautauqua Assembly v. Alling (46 Hun, 584): "The several assignments of the interests of the lessees are not absolutely void; they are voidable only at the election of the lessor or its assigns. They pass the title subject to the consequences of the breach. * * * If the lessor or its assignee chooses to avail itself of the breach, it can only do so by re-entering, as provided by the lease, or by pursuing such other legal remedy as the right of re-entry confers." (See, also, Kramer v. Amberg, 53 Hun, 427.)
In the answer of the landlord there is no allegation of re-entry or of any proceeding taken or any election to avail of the breach, and no counterclaim is pleaded or damage claimed. We think, therefore, that this defense is insufficient in law, and that the demurrer should have been sustained.
The interlocutory judgment must accordingly be reversed, with costs, and the demurrer sustained, with costs, but with leave to the defendant to answer over upon payment of the costs.
PATTERSON, McLAUGHLIN, HATCH and LAUGHLIN, JJ., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to answer over on payment of costs in this court and in the court below.