Kramer v. Amberg — 15 Daly (N.Y.) 205

Majority

p. 205

William Kramer, Respondent, against Gustav Amberg, Appellant.

(Decided April 1st, 1889.)

Headnote

The provision of the Code of Civil Procedure for summary proceedings to remove a tenant holding over “ after the expiration of his term,without the permission of the landlord ” (§ 2231), does not authorize such proceedings by a landlord to recover possession on account of a breach of condition by the tenant not to sublet the premises, for which the landlord may terminate the letting; the exercise of such option by the landlord is the termination, not the expiration, of the lease.

Appeal from a final order of the District Court in the City of New York for the Second Judicial District.

p. 206

The proceeding was brought to recover from a tenant possession of premises held by him under a lease for a term of'years ending May 1st, 1891, on the ground of an alleged breach by him of a condition not to sublet, giving the landlord the right to terminate the lease. The court rendered a decision in favor of the landlord, and from the ■ final order awarding him possession, the tenant appealed.

Howe and Hummel, for appellant.

A. J. Dittenhoefer, for respondent.

[Present, Van Hoesen and Bookstaver, JJ.]—The Code has not introduced any change into the statute relating to summary proceedings, and the decisions that construed the statute that the Code has superseded must control our construction of section 2281 of the Code. It has been the law of this state for many years that summary proceedings for the removal of a tenant will not lie where the landlord is seeking to recover possession on account of a breach by the tenant of some condition of the lease. Where the lease comes to an end on the happening of a designated event, without reference to the wishes of the landlord, so that without the exercise of the landlord’s volition the tenant’s right to occupancy reaches its limit by the mere words of the demise, the lease is said to determine by its own limitation, and in that case summary proceedings may be maintained. In the lease before us the landlord has the option either to terminate or to continue the term of the letting in case the tenant shall sublet the demised premises. If he elects to terminate the letting, he takes advantage of a bread) of a condition of the lease, but it is the, exercise by him of his option, and not the happening of an event provided for in the lease, that destroys the tenant’s right to a further enjoyment of the term. This exercise of the landlozxl’s option is not, in the language of the law, the expiration of a lease by its own limitation; and the uniform construction of the courts has been that where the statute speaks of the “ expiration of the lease,”

p. 207

the meaning is that the lease has come to an end either by effluxion of time or its own limitation. The ending' of the lease by the exercise of the landlord’s option after condition broken, is the termination, not the expiration, of the lease (Miller v. Levi, 44 N. Y. 492 ; Beach v. Nixon, 9 N. Y. 85 ).

It follows from this that the final order must be reversed, with costs.

Order reversed, with costs.^[1]

* The judgment entered on this decision was affirmed on appeal to the Court of Appeals, June 28th, 1889 (See 115 N. Y. 655 ).