59 N.Y. St. Rep. 477 | Superior Court of Buffalo | 1894
After issue joined upon the appellants’ petition and the respondent’s answer, and a jury had been impaneled to try the issue in the court below, the judge, upon respond
For the purposes of this appeal, we may assume that the petition contained all the other allegations that were necessary under the statute to entitle the petitioners to the final order of removal asked for; a copy of the lease between the parties is annexed to and made a part of the petition. It contains a covenant (among others) that if the lessee (the respondent here) should use the demised premises, or any part thereof, for any other purpose than living rooms for herself and family, to be kept in a respectable manner, then the lessors should have the right at their election to terminate the lease by giving to the lessee three days notice of such election, to be served ■ personally, and that the term created by the lease should “ thereupon cease at the expiration of the said three days in the same manner and to the same effect as if that were the expiration of the original term of this lease.” The petition by apt and proper allegations shows that during the term and prior to September 11, 1884, the respondent committed a breach of the covenant above set forth; that on the day last named the appellants served upon the respondent personally a notice in writing that they elected to terminate the lease at the end of three days from the service of the notice because of the breach of said covenant, and that the respondent held over and continued in possession of the premises after the expiration of the term thus produced without the permission of the petitioners. The petition was verified and presented to the court below, and the precept in this proceeding issued thereon on the 16th of September, 1884. There can be no doubt, therefore, that, according to the express terms of the covenant and agreement contained in the lease, the term created thereby expired on the fourteenth of September, two
Section 2231 of the Code of Civil Procedure provides that a tenant or lessee holding under such a lease as that in question may be removed by summary proceedings “ where he holds over and continues in possession of the demised premises, or any portion thereof, after the expiration of his term without the permission of the landlord.” The language of the section is essentially the same as that of the Bevised Statutes under which the causes to which I am about to refer arose.
In Oakley v. Schoonmaker, 15 Wend. 226, the Supreme Court decided, that the breach of a covenant or agreement in a lease to cut no wood or timber on the premises except for fencing, and to carry off no wood or timber, does not create such an expiration of the term as will authorize summary proceedings under the statute to remove the tenant.
And in Beach v. Nixon, 9 N. Y. 35, the Court of Appeals held that the breach of a covenant by the lessee that he will not permit the premises to be used for a purpose deemed extra hazardous, and that in case of such use the lease shall cease and determine at the option of the lessor, and that he may thereupon recover immediate possession under the statute in question, does not create such an expiration of the lease as the statute contemplates and intends.
In the two cases above cited the theory upon which the landlord proceeded was that the tenant’s breach of his covenant worked a forfeiture of the term so that the landlord might at any time re-enter and put the tenant out, and, therefore, the term had, in contemplation of the law, expired, and the tenant was holding over. But the courts held that the covenants in the lease created a condition merely and not a conditional limitation of the term. The relation of landlord and tenant did not cease, nor, of course, did the term cease upon the breach of the covenant, but only when the landlord
It follows from these views that the order and judgment appealed from were erroneous and must be reversed, with costs.
Sheldon, Ch. J., and Beckwith, J., concur.
Order and judgment reversed, with costs.