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Cohen v. Afro-American Realty Co.

108 N.Y.S. 998 Court N.Y. App. Term Decision date 1908-03-05 English

Delivered by BISCHOFF, J.

Contents

Majority

p. 998
COHEN v. AFRO-AMERICAN REALTY CO.
(Supreme Court, Appellate Term.
March 5, 1908.)

Headnote

Landlord and Tenant—Leases—Provision for Termination.
A provision in a lease that the filing of any process against the tenant “shall cause this lease immediately thereafter to céase and come to an end” is for the benefit of the landlord, and is not self-executing at the election of the tenant, so that the fact of process being .filed against the tenant at the instance of some person does not relieve him from liability for rent, unless by some act affecting the possession the landlord has signified his intention to avail himself of such provision.
p. 999
Appeal from City Court of New York, Trial Term.
- Action by Cassel Cohen- against the Afro-American Realty Company. From a judgment for plaintiff, entered on decision of the court, defendant appeals. Affirmed.
. Argued before GIEDERSEEEVE,- P. J., and BISCHOFF and MacEEAN, JJ.
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 cease 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 & Sel. 121; Roehner v. Insurance 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. . All concur. . .

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