Opinion
April 27, 1928.
Appeal from Supreme Court of New York County.
Emanuel van Dernoot of counsel [ Winfred C. Allen with him on the brief], for the appellant.
Frank F. Bergenfeld of counsel [ Abraham Brill, attorney], for the respondents.
The defendants were lessees under a lease from Adam and Elizabeth Nimphius of certain property in the borough of The Bronx. The lease demised a term of twenty-one years from June 1, 1918, and provided that on May 30, 1923, the tenants were to furnish security either by the deposit of cash or the delivery of a surety company bond. The defendants sublet to the St. Denis Bakery Lunch Co., Inc. The sublease contained a covenant by the St. Denis Bakery Lunch Co., Inc., inartificially described as the "assignee," to "comply with all the terms and conditions of" the original lease. The St. Denis Bakery Lunch Co., Inc., assigned its lease to the plaintiff. The defendants failed to comply with the provision of the original lease with respect to the giving of security on May 30, 1923. The plaintiff sought to make good this default, but there has never been any attornment to the original landlords and they refused to accept the security from any one other than their original tenants, the defendants. After this default summary proceedings were instituted by the original landlords and the plaintiff was evicted from possession under a final order. This action is brought to recover damages by reason of the defendants' failure to post the security and their consequent neglect to maintain the plaintiff in possession. The complaint was dismissed on the ground that the quoted clause in the sublease to the St. Denis Bakery Lunch Co., Inc., threw upon it and its assignee the obligation to post the security. We cannot so interpret it. In the lease made by the defendants to the St. Denis Bakery Lunch Co., Inc., there was a covenant of quiet enjoyment. The original landlords were under no obligation to accept the rent or security from any one but their own tenants. If the defendants had failed to pay the rent to the original landlords they would clearly have violated their covenant of quiet enjoyment in the sublease. They similarly violated it in failing to post the security. The covenant of the sublease to comply with the terms and conditions of the original lease cannot be construed as putting on the subtenant or its assignee the obligation to do what they could not do without the landlords' consent. No one other than the defendants could post the security without the consent of the landlords and it was their affirmative duty to post the security. Their failure so to do breached the covenant of quiet enjoyment.
The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
DOWLING, P.J., MERRELL, MARTIN and O'MALLEY, JJ., concur.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event.