[225 N. Y.]

Opinion, per CUDDEBACK, J.

[Jan.,

Appellate Division found, that prior to the delivery of the assignment to the defendant bank, an officer of the Keepsdry Construction Company took the same to the state architect's office and the assistant secretary in the architect's office procured the consent of the trustees of public buildings to the assignment and then returned it to the officer of the Keepsdry Construction Company.

The evidence upon this point abundantly supports the finding of the Appellate Division. The facts being as the Appellate Division found, the assignment had no inception until it was subsequently delivered to the bank, and it was, therefore, not in force when in the hands of the assistant secretary in the architect's office. The further finding of the Appellate Division that the assignment was not filed in the state architect's office has, therefore, support in the evidence and is conclusive in this court.

Again, the argument of the defendant bank is that the plaintiff's notice of lien was irregular and invalid because it relates to personal and not real property for which the law gives no lien, because it relates to materials or labor to be furnished in the future, for which the law gives no lien as to public improvements, and because the lien was not continued by an order of the court as required by section 18 of the Lien Law.

But the defendant bank cannot raise these questions here. The judgment of the Special Term was that the plaintiff by its notice had acquired a valid lien upon the moneys due upon the contract between the Keepsdry Construction Company and the state of New York. The plaintiff did not appeal from that part of the judgment but only from the part thereof which postponed its lien to the bank's assignment. The defendant bank did not appeal from the Special Term judgment at all. The Appellate Division reversed the judgment of the Special Term only so far as it was appealed from, and as its

1919.]

Statement of case.

[225 N. Y.]

opinion shows, did not consider the respondent's attacks on the validity of the plaintiff's notice of lien. The jurisdiction of this court is limited to a review of actual determinations of the Appellate Division. (Code Civ. Pro. § 190.) The Appellate Division not having considered the question raised, which involves that part of the judgment of the trial court upholding the regularity and validity of the plaintiff's notice of lien, the question is not open to review in this court. (Kelsey v. Western, 2 N. Y. 500.)

The judgment appealed from should be affirmed, with costs.

HISCOCK, Ch. J., CHASE, COLLIN, HOGAN, McLaughLIN and CRANE, JJ., concur. Judgment affirmed.

SARAH R. MANN, Appellant, v. FERDINAND MUNCH BREWERY, Respondent.

Landlord and tenant - person other than lessee in possession of leasehold premises presumption and evidence that such person is in possession as assignee when estopped from denying assignment annulment of lease by warrant removing tenant when effect thereof abrogated by agreement of parties.

1. Where a person other than the lessee is shown to be in possession of leasehold premises the law presumes that the lease has been assigned to him and that the assignment was sufficient to transfer the term and to satisfy the Statute of Frauds. So also payment of rent by the occupant to the plaintiff when the occupant has been let into possession by the original lessee is prima facie evidence of the assignment of the term, and a person in possession who holds himself out to the landlord as assignee is estopped from denying the assignment or objecting that the assignment was not in writing.

2. Usually the issuing of a warrant for the removal of a tenant from demised premises cancels the agreement for the use of the prem

[225 N. Y.]

Statement of case.

[Jan.,

ises and annuls the relation of landlord and tenant. (Code Civ. Pro. § 2253.) The parties may, however, as they did in this case, agree to the contrary and render the lessee liable to the end of the term although out of possession, and an assignee may also contract that he will remain liable after possession has terminated and for the period of the lease.

3. In this case there is evidence justifying the finding that the defendant expressly agreed and undertook to carry out the terms of the lease in question. By such assumption it took upon itself the obligation of the lessee to continue liable for the payment of the rent after the abandonment of the premises or after a final order in summary proceedings, and it is a fair inference from the facts that the assumption was in consideration of the assignment and consent thereto by the landlord.

Mann v. Munch Brewery, 173, App. Div. 746, reversed.

(Submitted December 4, 1918; decided January 7, 1919.)

APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 10, 1916, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and granting a new trial.

The nature of the action and the facts, so far as material, are stated in the opinion.

Leon Sanders and Jacob Zelenko for appellant. Privity of contract between plaintiff's assignor and defendant was conclusively established. (McAdam on Landl. & Ten. [4th ed.] 889, § 247; Mayer v. Wylie, 43 Hun, 547; 122 N. Y. 663; Frank v. N. Y., etc., R. R. Co., 122 N. Y. 197; Dassori v. Yarek, 71 App. Div. 538; Zinwell v. Ilkowitz, 83 Misc. Rep. 42; Steward v. Long Island R. R. Co., 102 N. Y. 601.) The condition of the lease continuing liability for the payment of rent survives dispossession. (Michaels v. Furst, 169 N. Y. 381; McReady v. Lindenborn, 172 N. Y. 400; Baylies v. Ingram, 84 App. Div. 360; 181 N. Y. 518; Slater v. Von Chorus, 120

1919.]

Points of counsel.

[225 N. Y.]

App. Div. 16; Chamberlain v. Parker, 45 N. Y. 569; Delavallette v. Wendt, 75 N. Y. 579; Dickinson v. Hart, 142 N. Y. 183.) Assuming for the sake of argument that the liability of defendant arose out of privity of estate only, it is nevertheless well settled that the dispossession of defendant did not terminate its liability for damages for breach of the covenant to pay rent. (Paddell v. James, 84 Misc. Rep. 212; Astor v. Lamoreux, 4 Sandf. 524; Frank v. N. Y., etc., R. Co., 122 N. Y. 197; Steward v. Long Island R. R. Co., 102 N. Y. 601; Dassori v. Yarek, 71 App. Div. 538; Tate v. Neary, 52 App. Div. 78; Paddell v. Janes, 84 Misc. Rep. 212; Zinwell v. Ilkowitz, 83 Misc. Rep. 42; Solomon v. Gleichenhaus, 131 N. Y. Supp. 599; Boreel v. Lawton, 90 N. Y. 293.)

Victor E. Whitlock for respondent. In so far as defendant's liability as assignee is claimed to rest on privity of estate, this liability ceased after the lease was terminated by dispossess proceedings and the premises surrendered to the landlord. (78th St. & Broadway Co. v. Purcell Mfg. Co., 152 N. Y. Supp. 52; Frank v. N. Y., etc., R. R. Co., 122 N. Y. 197; Dassori v. Zarek, 71 App. Div. 538.) The clause in the lease purporting to continue the liability for rent of an assignee of the lease after dispossess proceedings was not binding upon the defendant whose tenancy by privity of estate was then extinguished. (Paddell v. Janes, 84 Misc. Rep. 221; Baylies v. Ingram, 84 App. Div. 360; 181 N. Y. 518; Michaels v. Fishel, 169 N. Y. 385; McCready v. Lindenborn, 172 N. Y. 400; Slater v. Von Chorus, 120 App. Div. 16; Century Holding Co. v. Ebling Brewing Co., 162 N. Y. Supp. 1061, 1065; Dassori v. Zarek, 71 App. Div. 538; Adams v. Koehler, 136 App. Div. 623.) In so far as defendant's liability is rested upon privity of contract, the evidence does not establish a valid contract binding the defendant to the obligations of the lease. (Dassori v. Zarek, 71 App.

[225 N. Y.]

Opinion, per CRANE, J.

[Jan.,

Div. 538; Trotter v. Hughes, 12 N. Y. 74; Stebbins v. Hall, 29 Barb. 524.)

CRANE, J. This appeal brings up for review the rights of a lessor to recover from an assignee rent due under a lease accruing after dispossession. On the 1st day of February, 1910, Max Mann leased to Sarah Fish the premises 274 Broome street, Manhattan borough, New York city, for the term of five years and two months, beginning the 1st day of March of the same year. The term, therefore, expired May 1st, 1915. The leased property was a corner store and basement used as a saloon. Sarah Fish remained in the property until November, 1910, when the defendant, Ferdinand Munch Brewery, took possession and held it until dispossessed in August of 1913. The brewery paid the rent according to the lease from November, 1910, until and including August of 1913. This action is brought to recover the rent falling due each month from September, 1913, up to and including April, 1914. As stated, during this period the brewery was out of possession.

The action is based upon certain covenants in the lease hereafter mentioned, and which, it is claimed, were binding upon the defendant as assignee. The one question submitted to the jury is now immaterial as it only related to the lessor's authorization by the defendant to rent the premises in order to reduce the damage. Upon the questions here involved both sides moved for a direction of a verdict which was given in favor of the plaintiff, an assignee of the lessor. The Appellate Division having reversed the judgment, the plaintiff comes to this court under a stipulation for judgment absolute in case this appeal is decided against her. The reversal by the Appellate Division was solely upon questions of law as there is no statement in the order that the facts as found were not approved.