11 A.D.2d 580 | N.Y. App. Div. | 1960
Appeal from a judgment of the Court of Claims entered upon a decision dismissing a claim for the value of fixtures installed by claimant in a store of which it was lessee upon premises subsequently appropriated by the State for Thruway purposes. The lease provides, in paragraph “21st” that upon a taking of the land for public use the lease, “ at the option of the Landlord, shall become null and void, and the term cease * ” * upon the date when the same shall be taken and the rent shall be apportioned as of said date ”; and, further, that “No part of any award, however, shall belong to the Tenant.” Upon the trial, appellant’s attorney stated that the landlord’s option to nullify and terminate the lease had not been exercised “ in the sense that it is referred to ” in the paragraph quoted and conceded that the language there employed removed “ the need for an option ”, As both parties agree, the provision that no part of the award shall belong to the tenant serves only to deprive the tenant of any compensation for value of the leasehold. “ Even so, the tenant retains the right to compensation for his interest in any annexations to the real property which but for the fact that the real property has been taken, he would have had the right to remove at the end of his lease [citations omitted].” (Matter of City of New York [Allen St.], 256 N. Y. 236, 243.) The Court of Claims held, however, that under paragraph “ 22nd ” of the lease claimant had lost its right to remove fixtures by its failure to do so prior to expiration of the lease and hence that title thereto vested in the landlord and that claimant cannot recover therefor. This paragraph provides: “ If after default in payment of rent or violation of any other provision of this lease, or upon the expiration of this lease, the Tenant moves out or is dispossessed and fails to remove any trade fixtures or