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Silver v. Friedman

Decided: March 12, 1952.

DAVID B. SILVER, MOE SILVER, AND MAX SILVER, TRADING AS MECO REALTY CO., PLAINTIFFS-APPELLANTS,
v.
GEORGE FRIEDMAN, NATALIE WIENER AND JACK BEERMAN, DEFENDANTS-RESPONDENTS



Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.

Eastwood

The plaintiffs appeal from an adverse judgment of the Essex County District Court, sitting without a jury, in favor of the defendant, George Friedman, in an action for unpaid rent.

On November 7, 1946, the plaintiffs and defendant entered into a written lease for the premises in question, for a period of five years commencing December 1, 1946. The lease provided, inter alia , that the "Tenant shall not assign this agreement or underlet or underlease the premises or any part thereof * * *"; also, that the sum of $1,000 was to be held as security for the faithful performance thereof.

Thereafter, on December 16, 1948, Friedman, with the consent of the landlord, assigned the lease and the security of $1,000 to Natalie Wiener and Jack Beerman. By the terms of the assignment Friedman agreed as follows:

"* * * It is understood that I am not to be relieved of my responsibility under this lease and agree to be liable for the performance thereof in the event of a default or if my assignee violates the terms thereof."

And the assignees agreed:

"We, the assignees of the within lease, hereby assume same and agree to carry out all of the terms and conditions of said lease to the same extent and manner as though we were originally set forth therein as the tenant."

And:

"The landlord, hereby consents to the above assignment of lease and security with the understanding that the original tenant under said lease is not to be relieved from his responsibility and is to be held accountable in the event of a default or violation of said lease by the said assignees who are obligating themselves as the tenants under said lease in accordance with the terms of said lease."

The plaintiffs and the assignees, Wiener and Beerman, on the day of the execution of the assignment, entered into a

written agreement extending the terms of the lease for two years, fixing the rent for the extended period and providing that the security be retained by the landlord until the expiration of the extended period.

Subsequently, by an instrument dated March 7, 1949, Beerman and Wiener, without the knowledge or consent of Friedman, assigned the lease to Beerman and Meltzer, to which the ...


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