Act of 1875. In 1875 an act was passed making all rents, reserved on demises thereafter made, apportionable, and vesting a right of action in the legal representatives of persons entitled.92 In 1893 the act of 1875 was repealed 93 and its provisions were transferred to the Code of Civil Procedure.94

The Commissioners of Statutory Revision stated in substance that they revised the above provision of the Revised Statutes in this section of the Real Property Law of 1896 with a view to enlarge the remedy.95

92 Chap. 542, Laws of 1875, repealed by Real Prop. Law of 1896, art. X, infra.

23 Chap. 686, Laws of 1893.

94 § 2720, Code of Civ. Proc.; Niles v. Chase, 29 Hun, 200.

95 See note to 8 192, The Real Prop. Law, Appendix II, infra.

§ 223. Rights where property or lease is transferred. The grantee of leased real property, or of a reversion thereof, or of any rent, the devisee or assignee of the lessor of such a lease, or the heir or personal representative of either of them, has the same remedies, by entry, action or otherwise, for the nonperformance of any agreement contained in the assigned lease for the recovery of rent, for the doing of any waste, or for other cause of forfeiture as his grantor or lessor had, or would have had, if the reversion had remained in him. A lessee of real property, his assignee or personal representative, has the same remedy against the lessor, his grantee or assignee, or the representative of either, for the breach of an agreement contained in the lease, that the lessee might have had against his immediate lessor, except a covenant against incumbrances or relating to the title or possession of the premises leased. This section applies as well to a grant or lease in fee, reserving rent, as to a lease for life or for years; but not to a deed of conveyance in fee. made before the ninth day of April, eighteen hundred and five, or after the fourteenth day of April, eighteen hundred and sixty.

Formerly section 193, Real Property Law of 1896, chapter XLVI, General Laws:

8 193. Rights where property or lease is transferred.- The grantee of leased real property, or of a reversion thereof, or of any rent, the devisee or assignee of the lessor of such a lease, or the heir or personal representative of either of them, has the same remedies, by entry, action or otherwise, for the nonperformance of any agreement contained in the assigned lease for the recovery of rent, for the doing of any waste, or for other cause of forfeiture as his grantor or lessor had, or would have had, if the reversion had remained in him. A lessee of real property, his assignee or personal representative, has the same remedy against the lessor, his grantee or assignee, or the representative of either, for the breach of an agreement contained in the lease, that the lessee might have had against his immediate lessor, except a covenant against incumbrances or relating to the title or possession of the premises leased. This section applies as well to a grant or lease in fee, reserving rent, as to a lease for life or for years; but not to a deed of conveyance in fee, made before the ninth day of April, eighteen hundred and five, or after the fourteenth day of April, eighteen hundred and sixty.96

96 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

Section 193 was formerly 1 Revised Statutes, 747, sections 23, 24, and I Revised Statutes, 748, section 25:

$ 23. The grantees of any demised lands, tenements, rents or other hereditaments, or of the reversion thereof, the assignees of the lessor of any demise, and the heirs and personal representatives of the lessor, grantee or assignee, shall have the same remedies by entry, action, distress or otherwise, for the non-performance of any agreement contained in the lease so assigned, or for the recovery of any rent, or for the doing of any waste or other cause of forfeiture, as their grantor or lessor had, or might have had, if such reversion had remained in such lessor or grantor. (Amended by chap. 274, Laws of 1846, by striking out the word "distress.")97

§ 24. The lessees of any lands, their assigns cr personal representatives, shall have the same remedy by action or otherwise against the lessor, his grantees, assignees, or his or their representatives, for the breach of any covenant or agreement in such lease contained, as such lessee might have had against his immediate lessor, except covenants against incumbrances, or relating to the title or possession of the premises demised.98

25. The provisions of the last two sections shall extend as well to grants or leases in fee, reserving rents, as to leases for life and for years.98

The last section was amended by chapter 396, Laws of 1860, as follows:

CHAP. 396.

AN ACT to repeal chapter ninety-eight of the laws of eighteen hundred and five, and the subsequent re-enactment thereof.

Passed April 14, 1860.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Chapter ninety-eight of the laws of eighteen hundred and five, passed April ninth, eighteen hundred and five, entitled "An act to amend an act entitled 'An act to enable grantees of reversions to take advantage of the conditions to be performed by lessees,'" and section three of chapter thirty-one of the Revised Laws, passed March nineteenth, eighteen hundred and thirteen, being a re-enactment of said chapter ninety-eight of the laws of eighteen hundred and five, and section twenty-five of chapter one, title four, part two, of the Revised Statutes, being a further re-enactment of the same, shall not apply to deeds of conveyance in fee made before the ninth day of April, eighteen hundred and five, nor to such deeds hereafter to be made.

§ 2. This act shall take effect immediately.99

Comment on Form of Section, Supra. By including the three foregoing sections of the Revised Statutes in a single section of this act, the Commissioners of Statutory Revision included a variety of 97 Repealed, chap. 547, Laws of 99 Repealed, chap. 547, Laws of 1895. 1896.

98 Repealed, chap. 547, Laws of

laws in one section of the former Real Property Law of 1896. It conduces to simplicity, therefore, to consider this section in its original shape.

Account of Legislation Embodied in Section, Supra. The provisions of 1 Revised Statutes, 747, section 23,1 giving grantees of reversions the advantages of any conditions, etc., enjoyed by their grantors, was taken from the New York Revised Laws of 1813,2 which in turn came from the re-enactment by the State Legislature in 1788 of the English statute of 32 Henry VIII, chapter 34.3 This English act had extended to New York before its independence of the Crown. Before the statute 32 Henry VIII, chapter 34, an assignee of a reversion had a right to sue tenant for rent, for rent was incident to the reversion.5 But with reference to express covenants and conditions contained in the lease, the grantee being a stranger could not avail of them. The statute 32 Henry VIII, chapter 34, enabled assignees of reversions to have the advantages of their assignors against lessees. The act was substantially re-enacted in Jones & Varick's Revision of the New York laws, and, as detailed above, passed into the New York Revised Statutes.8

Assignees of Possibility of Reverter. The assignee of a mere possibility of reverter is not an assignee of a reversion under the acts mentioned, and is not aided by this section of the statute.10 Rent reserved on leases for years may be

Assignees of Rent.

assigned separately from the reversion.11

1 See above, p. 757.

21 R. L. 363; 1 K. & R. 105. 3 2 J. & V. 184; Van Rensselaer v. Ball, 19 N. Y. 100, 104.

4 And it was adopted by $ 35, Const. 1777, as a statute of the State.

5 Dolph v. White, 12 N. Y. 296, 301; Marshall v. Moseley, 20 id. 280, 283; Payne v. Beal, 4 Den. 405, 410. 6 See the text, supra, pp. 167, 196, 372; Platt, Cov. 527; Comyn, Landl. & Ten. 362; Smith, Real & Pers. Prop. 55; Dolph v. White, 12 N. Y. 295; Cruger v. McLaury, 41 id. 219, 226; Willard v. Tillman, 2 Hill, 274; Van Rensselaer v. Jewett, 5 Den. 121: Harbeck v. Sylvester, 13 Wend. 608; Broadwell v. Banks, 134 Fed. Rep. 470.

i

Assignee of Rent Charges and Perpetual Rents. How far the statute aided in New York assignees of a rent charge, or of a perpetual rent, has been considered above.12 The statute 32 Henry VIII, chapter 34, had no reference to assignees of a rent, being confined to assignees of the land.13 Assignees of a rent, but not of the reversion, were, however, enabled to sue for it in their own name in this State, at an early. day.14

1 Revised Statutes, 747, Section 24, Supra. The provisions of 1 Revised Statutes, 747, section 24,15 giving lessees and their assigns and representatives the same rights against assignees of reversions that they had against their predecessors in demise, is also derived from the same English statute mentioned just above,16 and its re-enactment followed the course in New York detailed in a preceding paragraph.17 Indeed, the statute of 32 Henry VIII, chapter 34, provided relief for assignees of reversions against tenants, and also for tenants against assignees of reversions.18 Under this statute the common law was so modified as to give tenants the same rights. against assignees of reversions, on real covenants and conditions in demises that they had against the original lessors, 19 provided such covenants and conditions run with the land and are not purely personal or in gross.20

This part of the section now under immediate consideration has lately received a new application. It has been extended so far as to enable a junior lessee under a subsequent demise to hold his predecessor in the term holding over after expiration of his lease, as the junior tenant's lessee for another year; although such junior lessee never gained possession or entered on the demised premises. In other words, the court treats the junior lessee as assignee of a part of the reversion under the section formerly I Revised Statutes, 747, sections 23 and 24.21

12 Supra, pp. 167, 196, 372, under 88 30, 31, Real Prop. Law.

13 Comyn, Landl. & Ten. 267.

14 Demarest v. Willard, 8 Cow. 206; Willard v. Tillman, 3 Hill, 274. 15 Supra, p. 757.

16 32 Hen. VIII, chap. 34.

17 2 J. & V. 184; 1 K. & R. 105; 1 R. L. 363; 1 R. S. 748, § 24, and now $223, Real Prop. Law.

18 Taylor, Landl. & Ten., § 439; Comyn, Landl. & Ten. 269, and see p. 167, under 8 30, supra.

19 Platt, Cov. 522; Buck v. Binnen

ger, 3 Barb. 391; Myers v. Burns, 33 id. 401; s. c., 35 N. Y. 269; Wilkinson v. Petit, 47 Barb. 230; Verplanck v. Wright, 23 Wend. 506; Allen v. Culver, 3 Den. 284, 294; Phoenix Ins. Co. V. Continental Ins. Co. 87 N. Y. 400.

20 Norman v. Wells, 17 Wend. 136; Mirick v. Bashford, 38 Barb. 191; cf. Avery v. N. Y. Cent. & H. R. R. R. Co., 7 N. Y. Supp. 341; Wilmurt v. McGrane, 16 App. Div. 412.

21 United Merchants' Realty & Imp. Co. v. Roth, 193 N. Y. 570, 579.