Dierig V. Callahan — 68 N.Y.S. 1133

Majority

p. 1131

(34 Misc. Rep. 218.)

DIERIG V. CALLAHAN.

(City Court of New York, General Term.

February 28, 1901.)

Headnote

Lease—Surrender on Demand—Condition Precedent.

Where a lease contains a stipulation that, on surrender of the premises by the lessee on demand of the lessor before the expiration of the term, a certain sum shall become payable to the lessee, that the premises be surrendered on demand is a condition precedent to the right of action to recover the sum stipulated; and a surrender before the expiration of the term, hut not on the date demanded, will not entitle the lessee to recover.

p. 1132

Appeal from trial term.

Action by Johanna Dierig against Julia A. Callahan. From a judgment on a verdict directed by the trial judge, and from an order denying a motion for a new trial, plaintiff appeals.

Affirmed.

Argued before CORLAN and O’DWYER, JJ.

George C. Coffin, for appellant.

A. & G. Steckler, for respondent.

The action was to recover a sum of money stipulated in a lease for the surrender of the premises demised, and before the expiration of the term, upon the lessor’s demand. Defendant had entered into a contract for the sale of the premises to a third party during the term, which contract was to be closed in June, 1899, and on the 29th day of April notified the lessee and the plaintiff, the tenant then in possession, to surrender the possession of the premises under the terms of the lease on June 1, 1899. It is claimed by the defendant that the plaintiff continued in possession of the premises until June 19,1899, and notwithstanding this demand; and the plaintiff admits that she retained the key to the premises until the latter date, when she delivered it on demand. This demand for the key was in consequence of a complaint made by the board of health for unclean conditions. Thus we find there was a condition precedent, and to be performed by the plaintiff before she would have the right to recover on the covenant. If she had vacated and surrendered the premises as required by the written notice, this precise condition would have been fulfilled, and her right of action would have accrued. Without it, she could not recover. The court directed a verdict for the defendant, and from the judgment entered thereon this appeal is taken. We think the direction of a verdict under the circumstances was a proper disposition of the case, and do not find anything in the record before us which calls for an interference with that determination.

Judgment and order appealed from affirmed, with costs.

O’DWYER, J., concurs.