Crown Corset Co. v. C. Ludwig Baumann & Co.

Headnote

Landlord and tenant — lease — extension under option therein — provision in original lease that same might be canceled by either party upon written notice not applicable to extended term.

Crown Corset Co. v. Baumann & Co., 213 App. Div. 113 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department entered June 4, 1925, unanimously affirming a judgment in favor of plaintiff entered upon an order granting a motion by plaintiff for judgment upon the pleadings and denying a motion by defendant for a dismissal of the complaint. The action was to recover rent. The complaint alleged that plaintiff leased premises to defendant for four months from the 1st day of May, 1923, the lease containing an option permitting defendant to extend it to April 30, 1925, which it duly exercised, and continued in possession of the premises and paid rent therefor until the end of May, 1924, when it vacated the premises and refused to pay the rent for the month of June. The defense was that on March 29, 1924, defendant served upon plaintiff a notice in writing that such lease should cease sixty days after such notice and claimed that* thereby the lease was terminated pursuant to the following provision therein: “It is specifically agreed by and between the parties hereto that on or after July 1st, 1923, the landlord may serve notice to the tenant or the tenant may serve notice to the landlord that this agreement shall cease and come to an end sixty days after the receipt of written notice by one

party to the other. In such event the rent for the remaining sixty days shall be the same as herein provided and at the end of said sixty days the lease shall come to an end as if such date were definitely fixed as the expiration of said lease.” The Appellate Division held that the cancellation clause was inapplicable to the extended term.