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Cohen v. Afro-American Realty Co.

58 Misc. 199 Court N.Y. App. Term English

Delivered by Bischoff, J.

Contents

Majority

p. 199
Cassel Cohen, Respondent, v. The Afro-American Realty Company, Appellant.
(Supreme Court, Appellate Term,
March, 1908.)

Headnote

landlord and tenant — Termination of relation — Breach of covenant or condition.
A provision in a lease, that it shall terminate upon the filing of any legal process against the tenant, is for the landlord’s benefit; and the tenant is not relieved from obligation to pay rent merely because, at some person’s instance, legal process is filed against him.
p. 200
Apeal by the defendant from a judgment of the City Court of the city of Mew York, entered in favor of the plaintiff upon the decision of the court.
Everett T. Chappell, for appellant.
Max D. Steuer (Wm. M. Seabury, of counsel), for respondent.

Obviously the provision of the lease that the filing of any legal process against the tenant “ shall cause this lease immediately thereafter to oea.se and come to an end” was inserted wholly for'the benefit of the landlord; and the mere fact that process against the tenant was filed, at some person’s instance, could not relieve him from his obligation to pay rent, unless, by some act which affected the possession, the landlord signified his intention to avail himself of this condition of the lease. Such a condition could be no more self-executing, at the tenant’s election, than would a provision terminating the lease for nonpayment of rent. See Rede v. Farr, 6 Maule & S. 121; Roehmer v. Knickerbocker Life Ins. Co., 63 N. Y. 160 , 166. And, since no actual termination was proven in the present case, the fact of the filing of process did not amount to a defense.

The plaintiff’s recovery is unassailable, and the judgment is, therefore, affirmed, with costs.

Gilkersleeve and MacLeau, JJ., concur.

Judgment affirmed, with costs.'

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