The complaint in this action alleges that, subsequent to the time that Earle, the original owner, made a lease of the store to the plaintiff company, he leased the entire building of which plaintiff’s demised premises were a part “ subject to the aforesaid lease to this plaintiff by virtue whereof the defendant Strathmore Leasing Company entered into and has ever since been and now is in possession of said building subject to plaintiff’s possession and occupation of said store.”
It seems to me that the cause of action alleged in the complaint is based on tort arising from the alleged conspiracy of the defendant, appellant, and its codefendants in interfering with the covenant of quiet enjoyment in the plaintiff’s lease. But the appellant, being in possession of the entire premises under a lease thereof made subsequent and subject to the plaintiff’s lease, became entitled to the right to collect the rent payable thereunder, and thus owed the latter the independent duty of upholding the covenant for quiet enjoyment of its lease.
In 16 Ruling Case Law (p. 638, “ Concurrent Leases, par. 123 ”) the rule is, I believe, correctly stated" as follows: “ The lessor may convey to a third person his reversion, by a concurrent lease under seal, and the lessee thereunder becomes the landlord of the first lessee with the right to collect the rent and enforce the covenants of the first lease until the expiration of the term of one or the other of the two leases. * * * A second lease for a
term of years while an existing lease is outstanding is taken subject to the rights of the prior lessee if the second lessee has or is chargeable with notice of the prior lease.”
Order affirmed, with ten dollars costs and disbursements, with leave to defendant to withdraw demurrer and answer plaintiff’s complaint upon payment of said costs and ten dollars costs of motion at Special Term.