179 Misc. 1040 | City of New York Municipal Court | 1942
Plaintiffs, Bashein and Levy, jointly represented defendant and M. H. Lamston, Inc., its lessee, in the preliminary negotiations which ultimately led to the execution of a lease for seven years from September 15, 1934; paragraph “ 25 ” thereof granted the tenant the right of option to renew for a like period at a rental equivalent to that provided for the last six years of the original term (paragraph “ 6 ” of the lease). The option to renew “ must be exercised by the giving of written notice to the landlord not later than February 1,1941,” and was subject to defeasance in the event the tenant by February 1, 1941, had not “ fully complied with all the terms, covenants, stipulations and conditions herein (the lease) included.” The defeasance provision is without import as the tenant exercised its option on September 13, 1940, approximately one year before the expiration of the term, and has continued in possession thereafter to date. Upon the exercise of the option by the tenant a new tenancy was not created to begin
It appears from the evidence that the plaintiffs were originally authorized by the defendant to negotiate for a twenty-one-year lease but at the time of its preparation the president of defendant, who appears to have dealt solely with plaintiffs, prevailed upon the lessee to have the term fixed at seven years with two rights of options of renewals for a similar term (see paragraph “ 26 ” of lease) with identical reservation of rent; with paragraph “ 26 ” the issues herein are not concerned. It appears that plaintiffs’ acquiescence in the change of the term from twenty-one years to that provided for with options in the lease was predicated upon their right to commissions being unaffected in the event the tenant exercised the options and continued the original tenure as extended thereby. The defendant contends that, because the plaintiffs’ claim to commissions is not evidenced by a writing, any agreement by the defendant to pay plaintiffs in addition to the commission paid for the original term is void under the Statute of Frauds (Personal Property Law, § 31) 'as the option provided for in paragraph “ 25 ” of the lease could not be performed within one year from the execution of the lease. With this contention the court is not in accord as the provision for the exercise of the option placed a limit beyond which the tenant would lose its right so to act; the limit therefor was “ not later than February 1,1941.” It, therefore, could be exercised any time intervening the date of execution of the lease and the date beyond which the right would cease, and as a consequence is not within the Statute of Frauds as it could be performed within one year. Allwin Realty Co. v. Earth (161 App. Div. 568), cited by defendant, is not controlling of the issues herein for in that case the tenant refused to exercise the option and the controversy arose not by reason of the extension of the original terms by the option, as here, but over a new lease not resulting from the tenant’s rights of option under the old. Williams v. Heckscher (126 Misc. 176) appears to be an authority peculiarly apposite; there the court held in
