On appeal from a judgment of the Supreme Court.
For the plaintiff-appellant, Samuel Koestler and Melvin J. Koestler.
For the defendant-respondent, Charles J. Stamler.
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment of the Supreme Court entered upon the verdict for a jury after a trial at the Union Circuit.
The suit was for rent under a written lease. The lease was entered into by Elizabeth Trust Company, trustee for Philip Cohen, plaintiff-appellant, and George T. Chong, defendant-respondent, for a period of ten years from June 1st, 1925. Subsequently there was an assignment on September 9th, 1927, by Chong to Jack W. Lee and Tom Chung Kai, the other defendants. There was no defense presented by Lee and Kai.
The lease contained a covenant against assignment but the assignment was assented to in writing by the trust company, by its attorney.
Chong's defense is that there was a substitution of tenants by consent of the plaintiff, and second, that there was a surrender and acceptance releasing him from liability. The assignees paid the rent to October, 1930, and the amount sought to be recovered fell due thereafter.
Parol testimony was admitted to the effect that the agent of the bank had told Chong, who expressed a desire to give up the premises and return to China, that if he obtained another tenant he would be released from his obligation. Accordingly, he says, he procured Lee and Kai, who borrowed money from the plaintiff bank and bought out his business. The oral consent of Cohen, for whom the bank acted as trustee, to his release was obtained, Chong says. Instructions were accordingly given to an attorney, who appears to have represented Cohen, the bank and Chong all at the same time in the transaction, to effectuate the matter. The result was the following:
"Elizabeth, New Jersey, September 9, 1927.
In consideration of one dollar and other good and valuable considerations to me in hand paid, I, George T. Chong, do hereby assign, transfer and set over unto Jack W. Lee and Tom Chung Kai, the within lease and ...