The pivotal words of the lease are these: "No assignment of this lease, in accordance with the provisions hereof, shall become effective unless and until the assignee shall deliver to the Lessor an instrument in writing assuming all the unfulfilled obligations of the assignor, if any, hereunder, and assuming all of the covenants and obligations hereof as though the assignee were the Lessee named herein and had executed this lease. * * * Whenever the holder of any proprietary lease shall, under the provisions thereof, be entitled to assign the same, and shall so assign it and the assignee shall deliver to the Lessor, an instrument in writing assuming all of the unfulfilled obligations of the assignor thereunder, such assignor shall have no further liability on any of the covenants hereof."
I must confess myself unable to see how these words can reasonably be taken to mean that the lessee was discharged of all liability on this lease when his unfulfilled obligations thereunder were "assumed" by an assignee "not individually" but merely "as Trustee" of a trust which has nothing in it but the lease and the appurtenant stock of the corporate lessor. The lessee covenanted to pay the rent and his share of the carrying charges. Nobody pretends that this trustee-assignee can fulfill these obligations in any degree whatever. To say that the lessee was at once let out by this barren trust is to say that his unfulfilled obligations have been wholly unloaded upon his associates in this self-styled "100% cooperative plan." Such a construction, I think, is necessarily excluded by the expressed predominant purpose of the parties. (See Jones on the Construction or Interpretation of Commercial and Trade Contracts, §§ 217-220; Thayer, Preliminary Treatise on Evidence, p. 412;Manson v. Curtis, 223 N.Y. 313, 320; Shirai v. Blum,239 N.Y. 172, 179; Atwater Co. v. Panama R.R. Co., 246 N.Y. 519,524.)
We need not say whether the assignment would have been effective to release the lessee if it had been less radically destructive of his cooperative undertaking.
I think the judgment should be affirmed.
LEHMAN, Ch. J., FINCH and CONWAY, JJ., concur with DESMOND, J. LOUGHRAN, J., dissents in opinion in which RIPPEY and LEWIS, JJ., concur.
Judgment accordingly. *Page 75