Dierig v. Callahan

34 Misc. 218 | City of New York Municipal Court | 1901

Conlan, J.

The action was to recover a sum of money, stipulated in a lease, for the surrender of the premises demised before the expiration of the term, upon the lessor’s demand. The 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 twenty-ninth 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 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.

Judgment and order affirmed, with costs.