Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
In this action the essentially significant facts are not in dispute. It will be serviceable to marshal them in chronological sequence.
On February 11, 1946 Rose M. Harris let the ground floor of premises designated No. 185 Broadway, Long Branch, New Jersey, to Huber's, Inc., a corporation of this State, for a term expiring on March 31, 1956. The transaction was evidenced by a written lease duly executed by the parties which enveloped the two following paragraphs of special relevancy to the present alleged cause of action:
"5. It is agreed that the Lessee shall not assign this lease without the written consent of the Lessor. The Lessee may, however, sublet the whole, or any part of the premises, in which event, however, the Lessee shall remain liable to make the rent payments provided for herein, and for the fulfillment of all the other covenants and conditions hereof.
22. It is agreed that in the event the Lessor shall decide to sell the land and building of which the leased premises are a part, the Lessee shall have the first right of refusal to purchase the same on terms and conditions acceptable to Lessor. The Lessee shall have a period of 10 days after the receipt of written notice directed to the leased premises of terms and conditions acceptable to Lessor in which to determine whether to meet said terms and conditions and to give the Lessor written notice of the acceptance thereof. Said Notice to Lessor to be directed to her in care of Malcolm Harris, 1001 Main Street, Asbury Park, New Jersey."
The lessor died on December 6, 1951 and by her last will and testament devised the demised premises to her sons, Malcolm and Ainslie Harris, who are identified as defendants in this action.
On September 15, 1952, in consequence of the refusal of the sons of the deceased lessor to consent to an assignment of the lease, the lessee, Huber's, Inc., sublet the demised premises to the plaintiff Frank D. Holmes for a period commencing on September 15, 1952 and expiring on March 24, 1956 at the same rental the lessee, Huber's, Inc., was obligated to pay by the terms of the lease of February 11, 1946. Cf. Firth v. Rowe , 53 N.J. Eq. 520 (Ch. 1895); Wilson v. Cornbrooks , 104 N.J.L. 418 (E. & A. 1928); Dries v. Trenton Oil Co., Inc. , 17 N.J. Super. 591 (App. Div. 1952). Noticeably here the term of the sublease expired seven days before that of the basic lease. Legal wizardry? However, if the subletting was violative in effect of the provision against the assignment of the lease, an objection thereto is not available to the appellant.
In recognition of paragraphs 5 and 22 of the basic lease, the sublease to the plaintiff Holmes comprised the following related provisions:
"5. It is agreed that the Tenant shall not assign this lease without the written consent of the Landlord. The Tenant may, however, sub-let, the whole or any part of the premises, in which event, however, the Tenant shall remain liable to make the rent payments provided for herein, and for the fulfillment of all the other covenants and conditions hereof.
22. It is agreed that in the event that the owner of the land and building of which the lease premises are a part, the said owner being the lessor of the Landlord herein, shall decide to sell the premises, then in that event the first right of refusal to purchase the same on terms and conditions acceptable to the said Rose M. Harris, Lessor, shall be and become the right and privilege of the Tenant herein, the Landlord herein hereby assigning, setting over and transferring the same unto the Tenant herein, subject only to the conditions set forth in Paragraph 22 of the Lease between Rose M. Harris, Lessor, and Huber's, Inc., Lessee, dated February 11, 1946. And the Landlord undertakes and agrees to execute any and all instruments required in such an event."
At this point in the narrative of facts it is significant to notice that the original lessee, Huber's, Inc., not only sublet the demised premises to the plaintiff Holmes, but by the sublease also assigned to the latter the option to purchase the property accorded by the terms of paragraph 22 of the lease of February 11, 1946.
In its pragmatical effect as between Huber's, Inc., and Holmes, inter sese , the latter, although nominally a subtenant, acquired the use and occupation of the demised premises in substitution for and under essentially the same terms as Huber's, Inc., except that Huber's, Inc., continued to be responsible for and in practice currently paid the rent to the landlords. It is noted that the landlords were aware of this transplantation and condoned the impropriety of it, if any, during the ensuing years. Cf. North v. Jersey Knitting Mills , 98 N.J.L. 157 (E. & A. 1922); Garbarine v. Reade , 95 N.J. Eq. 495 (Ch. 1924); Plassmeyer v. Brenta , 24 N.J. Super. 322 (App. Div. 1953).
Next in the progression of occurrences is the notice bearing date March 5, 1954 addressed by Malcolm and Ainslie Harris, the owners of the property, to Huber's, Inc., and to its subtenants or assigns, of which the following is a reproduction:
Huber's Inc., and or its Sub-Tenants ...