121 N.Y.S. 486 | N.Y. App. Div. | 1910
This is an appeal by the landlords from a final order dismissing their petition in summary proceedings.
On the 11th day of April, 1908, one James Bollo, owner of the premises at ¡No. 23 Washington avenue in the borough of Brooklyn, leased the same by an instrument in writing to the firm of Wald-man & Bielce, and the lease, was duly recorded. The term of the lease was for one year from the 1st day of May, 1908, and the instrument' contained these clauses:
“ It being further understood and agreed that in the event of the party of the first part, conveying his right, title and interest in and to the demised premises aforesaid to any other person, from the first day of May, nineteen hundred and nine,- to the first day of May, nineteen .hundred and ten, that upon sixty (60) days’ notice in writing to that effect to the tenants, these presents ¡shall terminate and come to an end thenceforth.
“It being further understood that the tenants, shall have the option to prolong' this lease for a period of one year from the first day of May, nineteen hundred and nine, to the first day of May, nineteen hundred and ten, at the rental of One hundred and seventy-
On the 1st day of March, 1909, the landlord served upon ■ the tenants the following notice:
“Messrs. Waldman & Rieke,
“23 Washington Avenue,
“Wallabout Market,
“Brooklyn, N. Y.:
“ Gentlemen.— Please take notice that Mr. James Bollo has entered into a contract with one Ignetz Weissberger, in order to convey to the said Weissberger all his right, title and interest which he now has in the premises No. 140 West Avenue, Wallabout Market.
“ That sixty days’ notice in writing is hereby given you according to the terms of your lease with said James Rollo, and that, therefore, said lease will come to an end on the first day of May, 1909. Should you, however, be willing to retain the premises which you now occupy, 23 Washington Avenue, you may signify your willingness to that effect.
“ Respectfully yours,
“ JAMES ROLLO, Landlord.
“ J. G. Giambalvo,
“ Attorney for Landlord.”
On the 27th day of March, 1909, the .tenants served upon the landlord a notice which stated, referring to the option clause in the lease: “ Pursuant to the same, we hereby give you notice that we have elected to prolong this lease for a period of one year from the first day of May, 1909, to the first day of May, 1910, at the rental
On the 1st day of May, 1909, the landlord, Bollo, conveyed all his right, title and interest in and to the said demised premises to the .present landlords, the petitioners, who, on June 27,1909, notified the tenants to vacate the premises within sixty days thereafter. The tenants refused to vacate, and this proceeding followed-.
The notice of March 1, 1909, did not serve to terminate the lease at the expiration of - sixty days from that date. At that time the landlord, Bollo, had not “ conveyed his right, title and interest in and to the demised- premises;” and under the clause of the lease providing for notice, it could not -be given before he had' done so. Moreover, the notice does not say that the landlord had contracted to sell the demised premises Nó. 23 Washington avenue,, but No. 140 West avenue, Wallabout Market; and it expressly gives the tenants the right to retain the premises at No. 23 Washington avenue. Whether the tenants also were lessees of- No. 140 West avenue, Wallabout Market, under a separate lease, does not appear. If they were, this notice probably referred to that tenancy.
If any notice was effectual to terminate the lease, it was that given by the present landlords, under date of June 27, 1909. Whether this was a valid exercise of the right of the landlord to terminate the lease on sixty days’ notice, rests upon the interpretation of the clause “ from the first day of May, nineteen hundred and nine to the first day of May, nineteen hundred and ten.” Is that the period within which a conveyance of his “right, title and interest” in the-, demised premise's would give the landlord the right to terminate the lease ; or does it mean the term for which the “ conveyance”' was to be made, and so require a notice of sixty days prior to May 1, 1909V ' ■ ' '
It was admitted on the trial that the demised premises were “ conveyed ” by Rollo- to the present landlords on May 1, 1909.
The provision of the lease that it should terminate upon tlie giving of sixty days’ notice was not a condition, but a limitation, and the trial court had jurisdiction in summary proceedings to remove the tenant. (Miller v. Levi, 44 N. Y. 489.)
The final order should be reversed and a new trial ordered, costs to abide the event.
Hibsohberg, P. J., Jenks, Bubb and Thomas, JJ., concurred.
Final order of the Municipal Court reversed and new trial ordered, costs to abide the event.