Francis v. Ferguson

• Decision Date: 13 December 1927
• Citation: 159 N.E. 416,246 N.Y. 516
• Parties: FRANCIS et al. v. FERGUSON et al.
• Court: New York Court of Appeals Court of Appeals

246 N.Y. 516

159 N.E. 416

FRANCIS et al.

v.FERGUSON et al.

Court of Appeals of New York.

Dec. 13, 1927.

Action for declaratory judgment by Daniel T. Francis and another, individually and as executors and trustees under the last will and testament of William Burrows, deceased, against Joanna Ferguson, individually and as executrix of the last will and testament of Edmond J. Curry, deceased, impleaded with William L. Archer. Judgment of the special term dismissing the complaint upon the merits was affirmed by the Appellate Division, Second Department (218 App. Div. 840, 218 N. Y. S. 750), and plaintiffs appeal by permission.

Reversed, with directions.

See, also, 219 App. Div. 723, 219 N. Y. S. 817.

Appeal from Supreme Court, Appellate Division, Second department.

Bern Budd and Edwin K. Bertine, both of New York City, for appellants.

Alexander Miller, Maxwell E. Lopin, and Charles V. Scanlan, all of New York City, for respondent.

POUND, J.

The complaint alleges that the defendant Ferguson, on November 12, 1920, entered into a written lease with William Burrows whereby she demised to Burrows a garage property in New York City for the term of ten years, at a rental of $16,000 a year, until September 1, 1926, and thereafter at a yearly rental of $18,000; that William Burrows died in November, 1925, leaving a last will, upon the probate of which letters testamentary were issued to these plaintiffs, as executors; that the plaintiffs, as such executors, entered into an agreement with the defendant Archer for the transfer of the lease to him; that Archer refused to complete the agreement on the ground that the lessor did not consent to the assignment. The complaint asks for a declaratory judgment that the plaintiffs may sell and give good title to the lease. The complaint was dismissed at Special Term upon a motion for judgment on the pleadings and a judgment of dismissal was granted. The Appellate Division unanimously affirmed the judgment.

The lease provides, among many other covenants, as follows:

‘That the tenant shall not assign this agreement, or underlet or underlease the premises or any part thereof, * * * without the landlord's consent in writing.’

At the end of the lease appears the following general clause:

‘And it is further understood and agreed that the covenants and agreements herein contained are binding on the parties hereto and their legal representatives.’

[1] The judgment below proceeds upon a misconception of the effect of the final clause of the lease. It expresses merely what the law presumes, in the absence of such a clause. ‘It is a presumption of law, in the absence of express words, that the parties to a contract intend to bind not only themselves, but their personal representatives.’ Kernochan v. Murray, 111 N. Y. 306, 308,18 N. E. 868, 869 (2 L. R. A. 183, 7 Am. St. Rep. 744).

[2][3] An ordinary covenant against assignment does not bind the executors of the tenant, and is not broken by a transfer of the leased premises by operation of law. Squire v. Learned, 196 Mass. 134, 81 N. E. 880,11 L. R. A. (N. S.) 634, 124 Am. St. Rep. 525,12 Ann. Cas. 977;Gazlay v. Williams, 210 U. S. 41, 28 S. Ct. 687, 52 L. Ed. 950. The covenant may, however, be so drawn as expressly to prohibit such a transfer. To accomplish such a prohibition in case of a devolution to executors, its language must be ‘very special.’...