274 A.D. 769 | N.Y. App. Div. | 1948
Respondents, who claimed to be the tenants and undertenants herein, are executors of the estate of Martha Fisher, deceased, who occupied
We think that the trial court erred in finding for the tenants and undertenants. While the executors were justified in holding on to the premises in their representative capacity until the expiration of the original term, this did not operate as an assignment or subletting in contravention of the specific terms of the lease. Whatever rights the executors acquired were solely in their representative capacity. We find no basis in the evidence for a holding that the landlord waived the provision in the lease against assignability and that he accepted the executors of decedent’s estate as tenants in their individual capacity. Accordingly, the determination of the Appellate Term and the final order of the Municipal Court should be reversed, with costs in this court and $25 costs in the Appellate Term to the appellant, and a final order of eviction is directed in favor of the landlord and against the tenants and undertenants.
Peck, P. J., Grl'ennon, Cohn, Callahan and Shientag, JJ., concur in Per Curiam opinion.
Determination of the Appellate Term and final order of the Municipal Court unanimously reversed, with costs in this court and $25 costs in the Appellate Term to the appellant, and a final order of eviction directed in favor of the landlord and against the tenants and undertenants. Settle order on notice.