247 A.D. 82 | N.Y. App. Div. | 1936
Plaintiff under a written lease rented from defendant certain premises for a term of one year from August 1, 1933, to August 1, 1934. The lease contained this provision: “ Party of second part [the lessee] shall have privilege of renewing this lease for five years or any part thereof.” Plaintiff retained possession of the premises after August 1, 1934, paying rent at the original rate, which was accepted for every month up to and including July, 1935. On January 8, 1935, defendant wrote plaintiff a letter as follows:
“ Dear Sir: It is our desire to occupy the warehouse. You are therefore hereby notified to vacate the same in accordance with our contract.”
On February 18, 1935, plaintiff wrote to defendant as follows:
“ Gentlemen: Pursuant to agreement between you and Samuel Feldman [the plaintiff] dated August 1, 1933, Mr. Feldman hereby exercises his privilege of renewing lease for the term of five years as provided in said lease.”
On June 28, 1935, defendant wrote plaintiff to the effect that plaintiff had not exercised any option prior to August 1, 1934, and that he would be regarded by defendant as having held over for one year and that defendant elected that plaintiff should relinquish possession of the premises on August 1, 1935. Under an agreed statement of facts plaintiff has brought an action for a declaratory judgment as to his rights in the premises and the trial court has rendered judgment from which this appeal is taken requiring plaintiff to surrender the premises because the lease expired August 1,1935.
The judgment appealed from should be reversed and a declaratory judgment entered in favor of appellant, with costs.
All concur, except Thompson, J., who dissents and votes for affirmance. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.
Judgment reversed on the law, with costs, and a declaratory judgment granted in favor of the appellant, with costs.