103 N.Y.S. 371 | N.Y. App. Div. | 1907
Dissenting Opinion
This is an appeal from a final order of the Municipal Court in a summary proceeding dismissing the petition on the merits. The lease was executed by the landlord on the 1st day of May, 1903,
I think-that- after the expiration of the first year the tenancy, was at most one from year to year. The doctrine of Western Transportation Co. v. Lansing (49 N. Y. 499) is applicable here. In . that case the owner and the tenant had entered into a lease for ' the term of fifteen years, and it was therein provided that the tenant . should have the privilege of keeping and occupying the. premises for Such further time after the expiration of said term as the tenant might choose to elect, yielding and paying therefor the same rent arid all taxes as during.the fifteen-year term. At the expiration of the term thé lessee’s representatives sought to renew the lease for a further term of fifteen years ; the owner refused, and the Court of Appeals held that because of the.privilege given to the lessee to renew for such term a:s he saw fit, the term of the lease was indefinite after the expiration of the fifteen years, and thereafter it ■ 'created at most a tenancy from year to year. So, too, it was held in Jackson v. Bryan (1 Johns. 322) that a lease for so long ás the ’ lessee please creates’ a tenancy at the most from year to year, so .long as both parties please.
The order appealed from should be reversed and a final order of removal directed to be entered, with costs, and with costs of this appeal.
Final order of the Municipal Court affirmed, with costs.
Lead Opinion
The covenant for renewals is in no way indefinite; its specific performance could be decreed. A bare covenant to renew means on the terms of the original lease (Tracy v. Albany Exchange Co., 7 N. Y. 172; Western New York & Pennsylvania R. Co. v. Rea, 83 App. Div. 576). That the covenant is for perpetual yearly renewals does not make it void. Such covenants are lawful and in general use (Rutgers v. Hunter, 6 Johns. Ch. 215, 219; Hare v. Burges, 4 K. & J. 45 ; Blackmore v. Boardman, 28 Mo. 120).
The case of Western Transportation Co. v. Lansing (49 N. Y. 499) is not in point.- There the covenant was held to be nonenforcible for uncertainty in respect of the term, and also because the landlord had died. I suppose it is proper to say that the opinion is discursive and has to be read with discrimination. The exact point decided is all that serves as a precedent (Colonial City Traction Co. v. Kingston City R. R. Co., 151 N. Y. 493).
The final order should be affirmed.
Jenks and Miller, JJ., concurred; Hooker, J., read for reversal.