There is not entire accord in the cases which have discussed the question that is presented in this case, which seems to have arisen from the different aspect in which the question has been presented, as a inore stringent rule has been applied when it was sought to construe an instrument which was in form a sub-lease of the premises as an assignment of the lease where the original lessor claimed a forfeiture of the léase,, than in cases where he claimed to be entitled to recover from the sub-lessee the rent reserved by the original lease. In 18 American and English Encyclopedia of Law (2d ed. p. 657) it is said: “ It is immaterial by what kind of an instrument or conveyance the term is so disposed of. Thus, the grantee or nominal lessee becomes an assignee if the lessee * * * executes an instrument purporting to be a lease or demise of the premises for the balance of his unexpired term or a period exceedingdiis term, or conveys the premises in fee simple.” -But on page 658 it is said: “ To constitute the transaction a sub-letting instead of an assignment, it is not necessary that the reversion retained by the original lessee be for any particular time. A reversion of the last day of the term is- sufficient, and where the sub-lessee covenanted to redeliver possession to the original lessee on the last day of the latter’s term,' the transaction was held to be a sub-lease. * *. * The fact that the lessee reserves in the transfer of his term a rent, so called, payable to himself will hot necessarily prevent‘the transaction from constituting an assignment instead of a sub-lease and the same has *763been held true where he also reserved a power of re-entry for non-payment.” <
The original lease in question contains no covenant against subletting and' it seems to be conceded by Mr. Justice Scott in his opinion that under the authorities of this State if the sub-lease had contained an express covenant by which the sub-lessee agreed to redeliver possession of the premises to his lessor on the last day of the latter’s term, that the transaction would be held to be a sublease. It seems to me that this is the effect of the covenant. It is true that the word “lessor” is not named, but the sub-lessee covenanted and agreed to and with his lessor, liis heirs and assigns, that the said lessee “ at the end or sooner termination of this lease shall quit and surrender said premises in good condition, reasonable wear and tear excepted.” That, I think, is in effect a covenant to deliver to the lessor, the party of the first part to the instrument and with whom the covenant is made. The covenant was made with the lessor that at the end or sooner termination of the lease he would quit and surrender the premises. Certainly this cannot be understood as a covenant to surrender the premises to any one but the person with whom the covenant was made. The lessor in the sub-lease being entitled, as I construe the lease, to repossession of the premises on the last day of the term, it seems.to me that under the authorities in this State the transaction is to be considered as a sublease and not as an assignment of the lease.
In Ganson v. Tifft (71 N. Y. 48) the question was presented and it was there said: “ The instrument referred to contained a provision reserving a right of re-entry for non-payment of rent, or a breach of other conditions; and that at the expiration of the term, or other sooner determination of the demise, the lessees should quietly surrender and yield up possession of the demised premises to the lessor. This constituted a sub-lease of the premises, and not an assignment of the entire term, which transferred any right of action against the defendant.” The cases of Collins v. Hasbrouck (56 N. Y. 157) and Woodhull v. Rosenthal (61 id. 382) were cited and considered. In Stewart v. Long Island R. R. Co. (102 N. Y. 601) the original lease was the lease for fifty years. What was called the sub-leash was a lease for ninety-nine years, and. it was held that that was an assignment and not a sub*764lease, because the original lessee had transferred to the defendant the entire term duringjwhich the original lessee was to hold the demised premises as lessee, and left no particle of that term in the original lessee or in his first assignee. But the opinion in that case recognized the rule established in Post v. Kearney (2 N. Y. 394) and Ganson v. Tifft (supra), that where, in an assignment of a lease or in a demise by the lessee for the same term as that granted by the original lease, there is a covenant to surrender to the assignor, this prevents a sub-lease from operating as an assignment. This has been because the whole instrument, taken together, has been held to reserve to the original lessee some fragment of the original term, although almost inappreciable in point of duration." The question is not free from doubt, but I think when a lessor comes into a court of equity and asks for equitable relief based on a forfeiture, he should present a case free from reasonable doubt, or equity will not interfere but will leave him to his remedy at law.
I think, therefore, this judgment should be reversed, with costs, and the demurrer-sustained, with costs.
Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.