Majority
p. 370Abe Bruder, Landlord, Appellant, v. Morris Geisler, Undertenant, Respondent. (Supreme Court, Appellate Term, May, 1905.)
Headnote
Landlord and tenant — Expiration of term — Construction of lease — Summary proceedings.A provision that in a certain contingency the tenant “ agrees to cancel said lease ” is equivalent to a provision that in the contingency mentioned the tenant “ agrees that the lease shall be thereby cancelled” and contemplates no act by the tenant.
The contingency having happened, the landlord may maintain summary proceedings to recover the possession of the demised premises.
Appeal by the plaintiff from a final order in dispossess proceedings made in the Municipal Court of the city of New York, fifth district, borough of Manhattan.
Joseph Wilkenfeld, for appellant.
Feltenstein & Rosenstein, for respondent.
The condition as to cancellation in the lease herein involved does not- differ in any essential particular from that considered in Miller v. Levi, 44 N. Y. 489 , which was determined to constitute a conditional limitation of the term permitting the maintenance of a summary proceeding for holding over. There is no force in the contention that the case is different because in the lease now under consideration the language is that in the contingency provided for,
p. 371
the tenant “ agrees to cancel said lease.” This is equivalent to saying that the tenant “ agrees that the lease shall be thereby cancelled,” and does not contemplate any act by the tenant to complete the cancellation. The subtenant’s rights are measured by those of his immediate landlord, the original tenant, and the cancellation of the lease, by its own terms, as to one cancels it as to both. Bove v. Coppola, 45 Misc. Rep. 636 ; 91 N. Y. Supp. 8 .
Final order reversed and new trial granted, with costs to appellant to abide the event.
Tbuax and Dowling, JJ., concur. .
Final order reversed and new trial granted, with' costs to appellant to abide event.
Cases cited
- Bove v. Coppola 45 Misc. Rep. 636 p. 371