201 A.D. 383 | N.Y. App. Div. | 1922
This is a summary proceeding instituted under section 1410, subdivision 1, of the Civil Practice Act to recover possession of demised premises occupied for business and not for residential purposes. That statute re-enacted section 2231, subdivision 1, of the Code of Civil Procedure.
The premises were demised for the term of ten years from January 1, 1920, to Barne Silver and Samuel Neuwirth, who prior to October 1, 1921, transferred his interest to the tenant, Silver. The lease provided, among other things, that in the event that any portion of the premises were taken over by the city of New York, the rent to be paid for the remainder, -of the term, for the remaining portion of the premises, should be fixed by agreement, or if the parties could not agree upon the rental the sum to be paid should be fixed by arbitrators within four months after title is taken by the city. The lease provided that if “ said arbitrators shall fail to agree upon an amount of rent to be paid for the remaining portion of the premises for the remainder of the term, within said period of four months, then, at the option of the party of the first part, this lease shall forthwith cease and determine anything herein contained to the contrary notwithstanding.”
The city of New York took title to a small portion of the premises on October 1, 1921, and on or prior to March 10, 1922 (more than four months thereafter), the tenant had not agreed upon the rent for the remaining portion of the premises, and the rent not having been fixed by arbitration the landlord, it is alleged, exercised the option contained in the lease, and caused to be served upon the tenant written notice thereof. This proceeding was then brought to remove the tenant as a holdover after the expiration of his term.
It is contended by the appellant that summary. proceedings may not.be maintained to recover possession of property except where the lease has “ expired ” or was terminated by a conditional limitation, and that where a lease may be terminated at the option of the landlord it does not constitute a conditional limitation.
This presents the sole question for determination. Did the language contained in the lease constitute a condition or a conditional limitation? I think it was a conditional limitation. The rule to be applied in determining this question in the case of
In Miller v. Levi (44 N. Y. 489) the lease provided that the lessor might terminate it at the end of any year in case he should sell or desire to rebuild, by giving sixty days’ previous notice, and this was held not to be a condition, but a limitation, the term expiring by force of a sale and notice without any further act on the part of the lessor. A provision in a lease that in case of a sale of the property the landlord might terminate the lease by giving twenty days’ written notice, was held in Ashton Holding Co., Inc., v. Levitt (191 App. Div. 91) a conditional limitation, upon the happening of which the term “ expired.”
The lease in effect provided for a ten-year term, unless sooner terminated, (1) by the city’s taking over a portion of the property; (2) the failure of the arbitrators to agree upon a new rental within four months thereafter, and (3) the exercise of the option to
The point is made that the petition does not allege that arbitrators were duly appointed and that they failed to agree, but this was unnecessary. The petition alleges that the tenant has not agreed upon the rent for the remaining portion of the term. The important fact is that the rent was not agreed upon and it is of no consequence whether arbitrators were or were not appointed.
It follows, therefore, that the order of the County Court of Kings county should be affirmed, with ten dollars costs and disbursements.
Blackmar, P. J., Kelly, Jaycox and Young, JJ., concur.
Order of the County Court of Kings county affirmed, with ten dollars costs and disbursements.