Kaskel v. Hollander, 2859.

• Decision Date: 15 December 1933
• Docket Number: No. 2859.,2859.
• Citation: 68 F.2d 265
• Parties: KASKEL v. HOLLANDER.
• Court: U.S. Court of Appeals — First Circuit

68 F.2d 265 (1933)

KASKEL v. HOLLANDER.

No. 2859.

Circuit Court of Appeals, First Circuit.

December 15, 1933.

Jacob J. Kaplan, of Boston, Mass. (Arthur E. Whittemore, Charles F. Dunbar, and Nutter, McClennen & Fish, all of Boston, Mass., on the brief), for appellant.

Robert G. Dodge, of Boston, Mass., for appellee.

Before WILSON and MORTON, Circuit Judges, and LETTS, District Judge.

MORTON, Circuit Judge.

The question is whether the defendant is liable for rent on a renewal lease, made in May, 1930, for the term of twenty-one years, covering property on Fifth avenue in New York City. The case was heard on agreed facts. In the court below there was judgment for the defendant; and the plaintiff has appealed.

Max Kaskel owned the real estate in question. In 1909, he leased it to three persons, of whom the defendant was one, for the term of twenty-one years, with the right to renew, at the option of the lessees or their assigns, for two further terms each of twenty-one years. The rent for the original term was $17,500 per year. In case of a renewal, the rent for the future terms was to be either agreed upon or arbitrated. The lease was unassignable during the original term without the assent of the lessor, which, however, was not to be unreasonably withheld. Thereafter it was assignable without such assent.

In 1928, the defendant, Hollander, was the only survivor of the three original lessees, the other two having died. In the spring of that year, he requested Kaskel's assent to an assignment of the lease to a new corporation, which we shall refer to as Hollander Inc., and with which the defendant was at that time in negotiation for the sale of his business. Kaskel refused to assent to the assignment requested. He contended that the lease had, in legal effect, already been assigned without his consent to Hollander & Co., which was then occupying the premises; that the covenant against assignment had thereby been broken; and that he had a right of re-entry. His position, as just stated, clearly appears from the correspondence. His counsel wrote to Hollander's counsel under date April 2, 1928: "The information which you give in your letter makes it perfectly apparent that the provisions of the lease restricting the same against assignment have been breached by the tenant" etc.; and again, under date October 5, 1928, after intervening correspondence in which Mr. Kaskel's position was insisted on, "It is our view that the assignment of this lease (meaning the asserted assignment to Hollander & Co.), being contrary to the agreement and condition, did not vest in the corporation any right to the renewal terms and therefore that the lease automatically terminates, if Mr. Kaskel does not see fit to avail himself of the right to terminate prior to that date, due to the breach, upon the last day of the original term. * * *" (Italics supplied.) "Mr. Kaskel will not consider himself bound in any respect unless and until the entire matter is concluded by a written agreement covering all points."

Kaskel offered, in effect, to waive this question and assent to the requested assignment on the payment of a satisfactory sum. The defendant and Kaskel, through their representatives, negotiated about the matter, until finally the defendant said that the sum asked by Kaskel was too large and dropped the negotiations. They were, however, turned over to the persons who were contemplating the purchase of the business. These persons arranged with Kaskel that he would waive his claim of existing breach of covenant, would assent to the assignment of the current lease to the new company, Hollander, Inc., and would renew the lease to it, as therein stated, for a payment of $20,000.

This sum was accordingly paid to Kaskel by the new company, or its representatives, and he gave to them in writing the agreement reached. It appears to have been attached to the assignment of the lease made to the new company by the defendant and the representatives of the original lessees. It recited that: "I Max Kaskel, the lessor within assigned lease * * * in consideration of the covenants of the assignee hereinabove contained, (a) do hereby consent in all respects to the above assignment to L. P. Hollander Company Inc., and (b) do hereby agree with L. P. Hollander...