Gordon v. Pfeiffer

KOFORD, P. J.

Plaintiffs and respondents by this action foreclosed a chattel mortgage upon hotel furniture. The mortgage was executed by Reynaud and wife as security for the faithful performance of a lease under which they operated the hotel. The appellant, Elise Pfeiffer, held a second chattel mortgage upon the same furniture and upon this appeal claims that, by virtue of an assignment of the

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lease to defendant Rawlinson by the lessee and by virtue of the consent to the said assignment given by the lessors adding certain conditions, that in legal effect the original lease secured by the said first chattel mortgage was entirely canceled and a new one took its place which was not secured by the first chattel mortgage. For this reason appellant claims that her mortgage should rank first instead of second as decreed by the trial court.

The term of the lease was from March 23, 1925, to October 31, 1930. Reynaud, the original lessee, assigned to Moore after executing the first chattel mortgage. Moore then executed the second mortgage to appellant, Elise Pfeiffer. About six months later Moore assigned the lease to defendant Marie Rawlinson and the plaintiffs and respondents being then the owners of the hotel premises as well as the owners and holders of the first mortgage consented to said assignment in writing with conditions.

Appellant’s argument is divided into three parts, the second and third depending upon the first, which is supported by no citation of authority. First, that the assignment and consent was in reality a new lease. Second, that the effect of the new lease was necessarily to extinguish the old one. Third, that with the old one extinguished and a new one made, the first mortgage, which was given as security for the old lease, was thereby discharged. There are three things in the consent to the assignment which appellant states makes of it a new lease. First, the new tenant took until December 31, 1931, instead of October 31, 1930. Second, the monthly rental was reduced. Third, a definite amount of elevator insurance was required of the new tenant.

The assignment was in the usual form. In effect it was, I, Leo P. Moore, do hereby assign subject to the consent of respondents herein. At the end of this document respondents indorsed their consent, reading in part as follows: “We, Philip Gordon and Sylvia Gordon, do hereby consent to the foregoing assignment subject to the following terms and conditions; That the said Marie Rawlinson shall agree to pay the rental called for by said lease, as hereinafter modified, and agree to be bound by all the terms, conditions and agreements in the said lease contained on the part of the lessee to be kept and performed with the same force and effect as if she were named therein as lessee; . . . that the term of