Dierig v. Callahan, 35 Misc. 30

Dierig v. Callahan

35 Misc. 30 | N.Y. App. Term. | 1901

Per Curiam.

The lease was of the store Ro. 411 Canal street, in the city of Rew York, and was made by the defendant to one Lina Kiehl, whose interest, as lessee, passed by intermediate assignments in writing to the plaintiff, and this action was brought by her to recover upon the lessor’s following covenant: “ It is hereby covenanted and agreed between the parties hereto that in case the premises hereby leased shall be sold by the said party of th^ first part during the term of the written lease, and the purchaser shall demand possession thereof at any time prior to" the expiration of the term herein specified, the said party of the first part shall pay to the said party of the second part the sum *31of $500 in full compensation for violation of this lease, and on written notice of thirty days, and the payment of the said sum to the said party of the second part she will deliver possession of the premises to the party of the first part.” It was shown and conceded upon the trial that a notice such as the covenant called for, was given, and that in compliance therewith the plaintiff surrendered the premises and removed therefrom some days after the expiration of thirty days immediately succeeding the time of the service of the notice upon her. Obviously, upon this state of facts, she was entitled to judgment and it was error to direct a verdict for the defendant.

That this was a covenant real, enforcible by the assignee of the term, seems an indisputable proposition when it is considered that it, in effect, provided for the lessor’s purchase of the remainder of the term, the payment being intended to take the place of the further use of the premises demised, and the plaintiff having, in compliance with, and reliance upon, the notice given her that the premises were sold, and that the purchaser wished for possession thereof, quit and surrendered the same, the defendant was estopped from successfully availing himself of the circumstances that the sale alluded to in the notice was not consummated.

Ror was the defendant aided by the fact that the plaintiff’s actual surrender of possession of the demised premises did not occur until some days after the expiration of the thirty days immediately succeeding her receipt of notice. The covenant did not obligate her to remove icithin the thirty days, and it was,therefore, satisfied on her part by her removal within a reasonable time after the expiration of that period. But, be that as it may, certain it is, from the covenant, that she was entitled to remain in possession until payment to her of the sum agreed. Two things were thereby required of the defendant as conditions precedent to any right to the plaintiff’s removal, the giving of a previous notice of thirty days, and the payment of $500, which latter the defendant omitted.

Again, the judgment is not to be supported because the lease provided against an assignment thereof without the written consent of the defendant, under penalty of forfeiture and damages. There'was abundant evidence which tended to show the defendant’s oral consent at the time of the plaintiff’s purchase of the lease, and therefrom a waiver of this restriction would result.

*32In any event, therefore, the plaintiff was entitled to have the question of the defendant’s consent submitted to the jury, as requested by her counsel. But, aside from the fact that forfeiture of the lease, because of the assignment thereof, was not pleaded, the omission of the defendant’s consent 'was immaterial, since it is elementary that an assignment of a lease, in violation of restrictions such as here appear, is, nevertheless, effectual, unless avoided by the lessor’s re-entry. ¡None such appeared or was claimed on the trial. Wood, Landl. & Ten., § 323, p. 530, and cases cited in note 6.

There is no force in the respondent’s contention that this appeal is not maintainable because not taken from the order of affirmance, as well as from the judgment which was entered pursuant to that order. The case cited by counsel (Waltenberg v. Bernhard, 27 Misc. Rep. 795) is direct authority that the appeal was properly taken from the judgment only. The order alluded to is wholly of an interlocutory character, and, so, not appealable. Whitfield v. Broadway & Seventh Ave. R. R. Co., 16 Daly, 288.

The judgments- of the General and Trial Terms of the court below should be reversed and a new trial ordered, with costs to the appellant to .abide the event.

Present: Bischoff, P. J., Leventritt and Clarke, JJ.

Judgments of General and Trial Terms reversed and new trial ordered, with costs to appellant to abide event.