Sagson Co. v. Weiss — 83 Misc. 2d 806

Majority

p. 806

Sagson Co., Appellant, v J. Leonard Weiss et al., Respondents.

Supreme Court, Appellate Term, First Department,

October 7,1975

Frederick L. Sohn for appellant. Seymour Forman for respondents.

Appellant, as landlord, received rent of respondent with the knowledge that the latter, permitting the apartment to be co-occupied by another, was in breach of a covenant of the lease. The lease contained a clause stating that the landlord could not be deemed to have waived any rights regarding a breach of the lease by merely receiving rent with knowledge of the breach.

A "no waiver” clause of this character does not apply to a claim of waiver by open possession. Despite such a provision in a lease, the acceptance of rent with knowledge of a subletting constitutes a waiver of the right to terminate the tenancy for breach of the condition against such subletting (Woollard v Schaffer Stores Co., 272 NY 304 ; Condit v Manischewitz, 220 App Div 366 ; Borsella v Torres, NYLJ, April 22, 1974, p 2, col 1; 215 West 34th St. v Feldman, 105 NYS2d 209 ; Rasch, New York Landlord & Tenant [2d ed], § 738).

Final judgment, entered June 10, 1975 (Riley, H. O.), affirmed with $25 costs.

Concur — Fine, P. J., Frank and Hughes, JJ.

Cases cited

Woollard v. Schaffer Stores Co. 272 NY 304 N.Y. 1936-12-31 p. 806