30 N.Y.S. 243 | New York Court of Common Pleas | 1894
The petition of the landlord recited that the rent for the month of March, 1894, amounting to $125, was unpaid, and that it was due, pursuant to the lease. The answer denied the lease and terms of agreement as set forth in the petition, and alleged that, through fraud and by means of false representations, she paid the landlord $1,000, which is still due her, and further alleged that the landlord failed, to perform the conditions of the agreement, and that the lease became forfeited on or about the 15th February, 1894, on default of the payments therein provided, and, therefore, that the court was without jurisdiction. The lease contains the following recital:
“And it is further understood and agreed that the party of the second part is to pay, in addition to the monthly rent of 8125, the further sum of one hundred dollars (8100) on the 15th day of each and every month as part payment of the furniture in said house 244 West 39th street, as per mortgage on said furniture; and, if not so paid, this lease shall become null and void.”
On the trial, it appeared, without contradiction, that the $100 due on the mortgage on the 15th day of February had not been paid; and, in our judgment, this default terminated the lease by its terms, without any act on the part of the landlord. The distinction between a condition subsequent contained in a lease and a conditional limitation of a lease must here be kept clearly in mind. In the one case, the landlord may elect to disregard the breach of the condition, and treat the lease as still existing; in the other case, he has no election, but the lease terminates by reason of the happening of the event. The case of the breach of a condition subsequent is well illustrated in Cramer v. Amberg, 16 Civ. Proc. R. 447, where
The final order, and all the proceedings resulting therein, should be set aside, and declared null and void, with costs of this appeal to the appellant.
