97 Misc. 407 | N.Y. App. Term. | 1916
This proceeding was brought to recover possession of certain premises on. the ground that the appellant was holding over after the expiration of his term. Appellant was in possession under a written lease dated August 3,1915, made between him as tenant and the Bond and Mortgage Guarantee Company, as landlord, for a term of three years from September 1, 1915, at an annual rental of $2,000. The lease contained the following clause:
“ In case the said landlord sell the said premises and the purchaser thereof demands possession of the*408 same the landlord may cancel this lease by giving to the said tenant sixty days’ notice in writing of its intention to do so, and if such notice be given this lease shall end and terminate at the expiration of such sixty days, and if such lease be terminated within the first six months of said term, the landlord shall pay to the said tenant two thousand five hundred dollars ($2,500.00), and if, during the second six months of said term, the landlord shall pay to the said tenant two thousand dollars ($2,000), and if the said lease be terminated after that, the said landlord shall pay-the ■ said tenant five hundred dollars ($500.00) less during each succeeding six months of said term, in which said lease is terminated.”
On March 1,1916, respondent entered into a written agreement for the purchase of said premises from the Bond and Mortgage Guarantee Company. Said contract recited that the premises were to be sold subject to appellant’s lease, as follows: “ Subject also to a certain lease made by the seller to Antonio Varori dated Aug. 3/15, which has been exhibited to the purchaser.” Respondent took title to said premises on March 16, 1916, by deed which recited that the premises were “ subject also- to a lease and to lettings to present monthly tenants.” At the same time the Bond and Mortgage Company assigned to.respondent the lease held by appellant. On April 1, 1916, appellant paid his rent for the month of April to respondent’s agent, and the agent turned it over to respondent. Appellant likewise paid the rent for the month of' May, 1916. No proof was given as to the payment of the May installment, but the petition alleges that the appellant “ attorned to the said Krim Realty Corporation and paid the rent to it as provided for in the lease * * This necessarily implies that the May rent was paid when due and such is the fact. On
Whether the cancellation clause was personal to the original lessor or ran with the land is to be determined by the intention of the parties. Bruder v. Crafts & D’Amora Co., 79 Misc. Rep. 88. In the case under consideration the privilege of cancellation is limited to the following contingency: “In case the said landlord sell the said premises and the purchaser thereof demands possession of the same the landlord may cancel this lease by giving to the said tenant sixty days’ notice in writing of its intention to do so.” These words would seem to limit the privilege of cancellation to “ the said landlord,” i. e., the original lessor. The “ purchaser ” is the person who is under the contract to purchase, but who has not yet taken title. The language used contemplated three parties, the landlord, the purchaser and the tenant. It also contemplated a notice of cancellation by the landlord in case the purchaser demanded possession. The situation of the parties also indicates that the intent was that the cancellation clause should be personal to the lessor. The Bond and Mortgage Guarantee Com
But it is not necessary to determine whether the privilege is personal for if the right of cancellation were a covenant running with the land it would not entitle the grantee to cancel the lease until it, in turn, made a sale. Butler & Herman Co. v. Meth, 122 N. Y. Supp. 271. When the respondent accepted an installment of rent from appellant, it became the landlord, and if it was at all entitled to the privilege of cancellation contained in paragraph 14 it could only exercise the privilege in the one case specified in that paragraph which was ' ‘ In case the said landlord sell- the said premises and the purchaser thereof demands possession.”
The final order is reversed, with thirty dollars costs, and the proceeding is dismissed, with costs.
Guy and Bijur, JJ., concur.
Final order reversed, with costs.