Salomon v. Cawston Ostrich Farm

BRITTAIN, J.

The plaintiff and appellant sued the defendant as a guarantor of a lease made and performable in New York. The trial court rendered judgment for the plaintiff for $2,197.48, the unpaid portion of rent for the month of October, 1914, with certain surcharges. The appellant maintains the judgment should have been for $6,045.36, to include the difference between the rental specified in the lease and that received between November 1, 1914, and April 1, 1915.

The appellant leased to the respondent, a California corporation, for five years, the most northerly store and basement thereunder, on the Fifth Avenue side of the Bristol Building, at Fifth Avenue and Forty-second Street, in New York. The single store was seventeen feet wide. The front of the store consisted of the show-windows and entrance, with two stone pilasters. The lease was assigned by the California corporation to a New York corporation of a similar name, and by the latter to a Mrs. Cohen. The landlord consented to each assignment. The trial court accepted the views of the appellant, based on decisions of the New York courts, that the original lessee was the guarantor of each assignee successively for the rents reserved in the lease.

(Manley

v.

Berman,

60 Misc. Rep. 91, [111 N. Y. Supp. 711];

Ranger

v.

Bacon,

3 Misc. Rep. 95, [22 N. Y. Supp. 551];

Wallace

v.

Dinniny,

11 Misc. Rep. 317, [32 N. Y. Supp. 159];

People

v.

German Bank,

126 App. Div. 231, [110 N. Y. Supp.

291]; Zinwell Co.

v.

Ilkowitz,

83 Misc. Rep. 42, [144 N. Y. Supp. 815].) The respondent prosecutes no cross-appeal from the judgment. It is, therefore, unnecessary to consider any change in the legal status of the parties which may have resulted from a later express guaranty by the respondent of the performance of the conditions of the lease by the first assignee. The lease provided that, in the event the landlord