The order denying defendant’s motion to dismiss the amended complaint for legal insufficiency should be affirmed.
The pleading alleges that defendant’s lease had been reassigned to plaintiff. This fact, if known to defendant as is also alleged, was sufficient to disable defendant from effecting a surrender and acceptance of the lease with the successor landlord, valid and binding on plaintiff, unless the consent of plaintiff had been first obtained.
The clause in the top lease to the extent set forth in the amended complaint reads as follows:
“ Section 14:03. In the circumstances hereinafter mentioned, Tenant shall assign, transfer and set over to Landlord, and does hereby assign, transfer and set over, such of the subleases that Tenant may make or such as are now in existence of the Demised Premises * * * upon condition, however, that such assignment shall become operative and effective only in the event that this lease and the term hereof shall be cancelled or terminated pursuant to the terms, covenants and conditions hereof, or in the event of the issuance and execution of a dispossess warrant or other re-entry or repossession by Landlord under the provisions hereof.
*297“In the event of such assignment becoming effective and operative as above provided, Tenant hereby authorizes Landlord in the name of Tenant, or otherwise, as Landlord may elect, to take all necessary steps and legal proceedings, (whether by summary proceedings, ejectment, or other legal or equitable suit or proceeding), to enforce the performance of the terms, covenants and conditions of such sublease.”
The opening language provides that the subleases, present or future, are assigned. The nomenclature ‘‘ subleases ’ ’ with respect to existing leases is inept, but its purport is clear in referring to leases made by prior landlord (this plaintiff) to tenants occupying portions of the premises. About this, no one makes dispute.
True, the quoted provision states also that the assignment (as to existing leases, really “ reassignment ”) “ shall become operative and effective only in the event that this lease and the term hereof shall be cancelled or terminated pursuant to the terms, covenants and conditions hereof, or in the event of the issuance and execution of a dispossess warrant ’ ’. Again, this is inept language, but it is equally clear that the provision means that the assignee (who is such solely for purposes of security) shall not take possession and control of the “ subleases ”, that is, act as landlord by collecting rents and generally taking over the management of the “ subleases”, until the specified contingencies have occurred.* To construe the assignment as having no present effect, merely because the draftsman used language which successively cancelled itself is truly to make a talisman of words, rather than weighing the ideas they represent. If anything is certain in this case, it is that the parties intended that some present effect should be given to the assignment of the “ subleases ”.
Consequently, defendant, if the allegations are true, surrendered its lease to one who, with its knowledge, had parted with power validly, as against plaintiff, to accept such surrender in the absence of the assignee’s concurrence. Consequently, too, the plaintiff is the security owner of the lease, and as such, it cannot be affected by the purported surrender and acceptance between the assignor or the assignor’s successor and defendant, whatever their rights might be between them. For this plaintiff has the right to choose among several remedies. One such remedy, perhaps, may not be to treat it as an interference with its contract rights, but that is of no significance. On the plead*298ing it suffices that the ultimate facts establish a transaction which does not and cannot negative plaintiff’s rights existing prior to the purported surrender and acceptance. Of course, plaintiff must prove its allegations, especially of knowledge by defendant of the top lease and the terms affecting defendant as the lessee under a lease made prior to such top lease.
The key, of course, to liability is defendant’s knowledge of this assignment. As already noted, such knowledge is alleged and, for purposes of a pleading motion, must be assumed to have been present when defendant paid a substantial sum to the successor landlord for the lease surrender. The situation is no different than if a tenant, with knowledge of all the facts, surrenders a lease for a consideration to a landlord who has validly assigned the rents as security to another (for references to the obligations of a tenant whose landlord has assigned or mortgaged the lease, see 2 McAdam, Landlord & Tenant [5th ed.], § 233).
On this analysis one is not concerned with the case of a stranger to a contract who makes an agreement with one of the parties to the contract inconsistent with such party’s prior obligation. Instead, defendant was no stranger to the top lease but one whose obligations had been affected by the assignment and reassignment of its own lease, binding on it so long as it had notice. As a matter of fact, the privilege under the claim of economic or other justification or excuse to interfere with another’s contract is not nearly as broad as suggested by the application in this case by the majority. Cases like Campbell v. Gates (236 N. Y. 457, 460) and Hornstein v. Podwitz (254 N. Y. 443, 448-449) state the rule as does the majority, but nothing in the holdings or the opinions suggests the extraordinary view that an economic self-interest is sufficient to justify any intentional interference with another’s contract. The rule is not to be confused with so-called ‘1 prima facie tort ’ ’ (Ruza v. Ruza, 286 App. Div. 767; cf. Knapp Engraving v. Keystone Photo Engraving Corp., 1 A D 2d 170). (See Restatement, Torts, §§ 766-769.)
Accordingly, I dissent and vote to affirm the order denying defendant’s motion to dismiss the amended complaint for legal insufficiency.
Botein, P. J., and Stevens, J., concur with Steueb, J.; Bbeitel, J., dissents in opinion, in which Rabin, J., concurs.
Order, entered on May 1,1962, denying defendant’s motion to dismiss the complaint reversed on the law, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs.
For a parallel see St. Louis Union Trust Co. v. Jolliffe, 74 F. 2d 247, 249 (C. A. 2d, L. Hand, J.); see, also, Anno. Rent — Mortgagor and Mortgagee, 105 A. L. R. 744, 752-753.