De Peyster v. Michael

6 N.Y. 467 (1852)

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Nature of the Case

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Facts

The transaction started by a lease in fee from Rensselaer to Snyder in 1785. De Peyster (P) is the assignee of the lessor and Michael is the assignee of the lessee. The rent was 48 bushels of wheat. The lessor also reserved one-quarter part of all moneys owing or that might arise from the selling, renting, setting over, assigning or of disposing of the premises or any part thereof leased by the lessee his heirs and assigns. The lessee covenanted that he had to make the first such offer to P in writing. If the lessor refused, after deducting one fourth, the lessor covenanted to permit the lessee to sell or assign the premises provided the one-fourth fee was paid. P sued and proved at trial that a portion of the premises had been sold or assigned to D without paying the fee required. D claimed that the fee was repugnant to the estate granted in fee by the lease and was void. The judge held the condition void and nonsuited P. P excepted The Supreme Court affirmed and rendered judgment for D. P then appealed.