Emanden Realty Corp. v. Angley

24 Misc. 2d 877 | N.Y. App. Term. | 1959

Dissenting Opinion

Hofstadtbr, J.

(dissenting). The lease does not prohibit absolutely the installation of a washing machine; it requires only the consent of the landlord in writing to the installation. The trial court’s finding, on sufficient evidence, of a waiver necessarily implies oral consent. That is enough to create a valid waiver of the requirement of written consent (Alcon v. Kinton Realty, 2 A D 2d 454, 456; Beatty v. Guggenheim Exploration Co., 225 N. Y. 380, 387; Adams-Flanigan Co. v. Kling, 198 App. Div. 717, 720, affd. 234 N. Y. 497; Sol Apfel, Inc. v. Kocher, 61 N. Y. S. 2d 508, affd. 272 App. Div. 758). Hence, I dissent.

Steuer and Tilzer, JJ., concur; Hoestadter, J., dissents in memorandum.

Final order reversed, etc.

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Lead Opinion

Per Curiam.

The unauthorized installation of the washing machine and its retention after notice was a violation of a material provision of the lease ( L. H. Estates Co. v. Bartholomew, 9 Misc 2d 116). There was no proof of waiver of the terms of the lease.

The final order should be reversed, with $30 costs, and final order directed for landlord, with costs.