Stover v. Chasse

GIEGERICH, J.

The sole question presented for solution by this appeal is whether the instrument made by Mrs. Schultheis to the •appellant operated as an assignment of the entire estate of the former in the Chasse lease, or as a sublease. “An assignment, as applied to leasehold interests, is properly defined to be a transfer or making over to another of the right one has in the unexpired residue of a term or estate for years. Though the interest be future, as a term of years to commence in futuro, the transfer is valid, because the interest is vested in praesenti, though it does not take effect till a future time.” McAdam, Landl. & Ten. (2d Ed.) p. 269. “An assignment, as contradistinguished from an underlease, signifies a parting with the whole term.” Id. Where the alienor, by any instrument whatever, whether reserving conditions or not, parts with his entire interest, he has. made a complete assignment, or, if he has transferred his entire interest in a part of the premises, he has made an assignment pro tanto. If he retain a reversion in himself, he has made a sublease. Woodhull v. Rosenthal, 61 N. Y. 382, 391 ; Stewart v. Railroad Co., 102 N. Y. 601, 607-612 , 8 N. E. 200 . See Kelly v. Smith, which was decided by this court, and reported in 16 N. Y. Supp. 521 . It is immaterial what form of instrument is used,—whether it purports to be an assignment or a new lease. See cases last cited. The circumstances that the second lease reserves a different rent, or right to a re-entry for breach of condition, are immaterial. Stewart v. Railroad Co., supra. It is essential to an undertenancy that it be of a part, only, of an unexpired term. Bedford v. Terhune, 30 N. Y. 454 , 457; Woodhull v. Rosenthal, supra; Stewart v. Railroad Co., supra. This case is distinguishable from Collins v. Hasbrouck, 56 N. Y. 157 , and the cases cited by Rapallo, J., in his elaborate opinion in Stewart v. Railroad Co., 102 N. Y., at page 613 , 8 N. E. 200 . In those cases the sublease provided for the surrender of the premises by the lessee to the lessor at the end of the term, while, in the case before us, the instrument to the appellant does not provide to whom he shall surrender the premises at the expiration of the term. Applying the principles of the decisions in Stewart v. Railroad Co., Kelly v. Smith, and Woodhull v. Rosenthal, supra, to the present cas., it must be held that the effect of the demise of Mrs. Schultheis to the appellant of the premises occupied by the respondent, for a period equal to her own term therein under the Ohasse lease, was to divest her of any reversionary right in the demised estate and premises, and the appellant, as the assignee of his said alienor, succeeded to her entire estate and inter *742 est in tile premises in controversy. The final order should therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.