291 N.Y. 422 | NY | 1943
The provisions of section
That question arises in an action for rent brought by the respondent, a landlord, against the appellant, a tenant, who leased an apartment for a term of one year commencing *424 October 1, 1937. The tenant remained in possession until September 30, 1941, under a written lease which contained the following renewal clause: "12. That this letting and hiring shall be extended and renewed by and against the parties hereto for the further term of one year from the expiration of the term granted hereby, at the same rate of rental without any deduction or concession, and upon all the above terms, conditions and covenants, unless either party on or before the first day of August next preceding the termination of any term granted hereby, shall give notice to the other of an intention to surrender or have possession of the premises, as the case may be. Notice by the landlord to the Tenant must be given by sending the same by U.S. Registered mail. Notice by the Tenant to the landlord must be given by sending the same by U.S. Registered mail. This clause shall be and continue operative likewise with respect to any renewals or extensions hereof."
When possession was relinquished by the tenant on September 30, 1941, he had failed within the period prescribed in the lease (automatic renewal clause, par. 12, quoted above) to give notice to the landlord of his intention to surrender the premises. Meantime, however, the landlord had failed on his part to give to the tenant written notice of the existence in the lease of the automatic renewal clause, as required by section
Despite his failure to give the written notice required by the above statute, the landlord took the position that, in accord *425 with the automatic renewal clause contained in paragraph 12 the lease had been renewed for a period of one year. When the apartment stood vacant for the month of October, 1941, the landlord instituted the present action to recover the rent reserved for that month.
The question of law for our decision arises upon the contention by the landlord that the tenant may not invoke the protective provisions of section
The tenant admits that there is in the lease a waiver clause such as that now invoked by the landlord. He contends, however, that such a clause, which assumes to waive the provisions of section 230, is contrary to public policy and that, accordingly, it is not legally effective to relieve the landlord of the statutory requirement of a written notice which brings to the tenant's attention the existence in the lease of the automatic renewal clause.
The issue of law thus tendered is not between parties to a contract, who, after default, enter into a new agreement upon a new consideration and attempt thereby in good faith to settle differences between them. (See Adler v. Weis Fisher Co.,
Long ago this court held that a prospective waiver of a benefit under the exemption law, by a clause embodied in the original contract between the parties, was void as against public policy. (Kneettle v. Newcomb,
Later, in Shapley v. Abbott (
Believing as we do, that the enactment of section
In reaching this conclusion we have been influenced by the rule in Crowe v. Liquid Carbonic Co. (
The orders should be reversed and the complaint dismissed, with costs in all courts.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY, CONWAY, DESMOND and THACHER, JJ., concur.
Orders reversed, etc.