Manhattan Life Insurance v. Gosford — 3 Misc. 509

Majority

p. 509

The Manhattan Life Ins. Co. v. Gosford.

(New York Common Pleas

General Term,

May, 1893.)

Headnote

A written lease from May to May, provided among other things, “that if the landlord shall at any time deem the tenancy undesirable, then the tenant will vacate the premises and render up peaceable possession thereof to the landlord after two months’ notice in writing to be left in or upon said premises, but for the two months covered by said notice the tenant shall not be required to pay any rent.” Held, that a tenant; who refused to vacate after service upon him of the notice above provided, held over after the expiration of his term without the landlord’# permission, and might be dispossessed by summary proceedings.

p. 510

Appeal from a final order in favor of the landlord made in summary proceedings to recover the possession of land pursuant to the provisions of section 2231 of the Code of Civil Procedure, which were instituted in a District Court in the city of New York.

Artemus II. Holmes, for landlord (respondent).

John A. Foley, for tenant (appellant).

The lease was of a room designated as the • “ North Sub-Basement Office of the Building Numbers Sixty-four and Sixty-six Broadway, extending through to and being Number Nineteen, New Street, known as the Globe Building, in the City of New York,” and was originally for one year commencing May 1, 1891, to May 1, 1892, but by mutual agreement extended for one further year. Among other things it provided “ that if the landlord shall at any time deem the tenancy undesirable, then the tenant will vacate the premises and render up peaceable possession thereof to the landlord after two months’ notice in writing to be left in or upon said premises, but for the two months covered by said notice the tenant shall not be required to pay any rent.” On December 1, 1892, the landlord caused the following notice to be served on the tenant:

“ Deab Sib.— The Manhattan Life Insurance Company, your landlord, and owner of premises Nos. 64 and 66 Broadway, and No. 19 New Street, part of which you occupy as tenant, hereby requests you to render up peaceable possession thereof on the first day of February, 1893, pursuant to the terms of your lease.

“Very truly yours,

“HENRY B. STOKES, Presidents

The tenant failed to vacate the premises upon expiration of the time limited in the notice, and thereupon the landlord instituted proceedings to recover possession upon the ground that the tenant continued in possession after expiration of the term without its consent.

p. 511

The provision in the lease for notice by the landlord operated to limit the duration of the tenant’s estate. It did not create a condition subsequent for the tenant’s breach of which the landlord could re-enter and thus recover his former estate. The case at bar is, therefore, clearly distinguishable from Cramer v. Amberg, 16 Civ. Proc. Rep. 447, cited by appellant’s counsel. In that case, the General Term of this court held that the breach of a condition subsequent by the tenant does not of itself operate to determine the demised estate; that such a result is attainable only by the landlord’s re-entry, for breach of the condition; that, without such re-entry, the term cannot be said to have expired; and hence, that for a breach of a condition subsequent, summary proceedings to recover possession of the demised premises under the provisions of section 2231 of the Code of Civil Procedure cannot be maintained on the ground that the tenant continues in possession after expiration of the term.

Here, however, the lease is in effect that it shall endure for one year, unless sooner determined by service of the landlord’s notice in writing, in which event the term demised shall expire upon the lapse of two months from the time of service of the notice. In such a case no condition is violated, but the term expires of its own limitation upon the happening of the event provided for. Re-entry is not required to reinvest the landlord with the right to immediate possession, and summary proceedings to recover it are maintainable. Miller v. Levi, 44 N. Y. 489 .

The landlord’s authorization of the notice of its president to the tenant to surrender the premises is sufficiently shown by the adoption of the, notice for the purposes of these proceedings and its reference to the provisions of the lease apprised the tenant that the landlord no longer desired to continue the tenancy. Nor was the landlord bound to assign any ground for deeming the continuance of the tenancy undesirable. The lease did not circumscribe the landlord’s discretion in that respect by requiring that it should proceed from sufficient grounds, and why it deemed the continuance of the

p. 512

tenancy undesirable is, therefore, immaterial. Werner v. Bergman, 28 Kans. 60 ; 42 Am. Rep. 152 .

The order should be affirmed, with costs.

Bookstaveb, J., concurs.

Order affirmed.