146 N.Y.S. 160 | New York County Courts | 1914
There can be no question but that the original term of this lease ended on the 9th day of January, 1914, at noon. The lease by its terms specifically so provides. The entire question litigated here is as to the effect of the provision in the lease which says: “ With the privilege of a renewal of this lease at the end of said term.” There is nothing further than the language just quoted upon that subject in the, lease. It does not state for what period, or at what rate, or in what manner the renewal is to be effected, and the petitioner claims the paragraph quoted is void for uncertainty. It seems to have been held in a number of cases that such language is to be interpreted as referring to a new lease for the same term and at the same rent. Rutgers v. Hunter, 6 Johns. Ch. 218; Tracy v. Albany Exchange Co., 7 N. Y. 474. It is doubtless true that the clause in question was put into the lease for a purpose, and that we must endeavor to ascertain what that purpose was, and to give it effect if possible. Defendants contend that the paragraph in effect makes the lease one for ten years, or at least that it gives them the unqualified option to renew the lease for five years, and they contend that the service of their notice of election to remain or renew the lease is sufficient, ipso facto, to effect that result. This theory involves several propositions, the first of which is that the legal purport of the words in question is to give to the tenant an unqualified right of renewal, and that proposition
My attention is not called to any case, when under circumstances exactly similar to these the tenant has been held to have effected a renewal of a lease merely upon the service of a notice. This brings us to a consideration of the petitioner’s rights, if any, viz: as to whether he has anything to say on the subject of a renewal. It will be noticed that somebody, doubtless the party of the second part, is given the “ first privilege of renewal.” Defendants contend that the word “ first ” is mere surplusage, and point out that nobody can have a renewal of the lease but themselves. This is strictly true, as a new lease, at least one to anybody else, would not be a ‘ ‘ renewal ’ ’ of the present or former lease. However I think that the word ‘ ‘ renewal, ’ ’ as contained in the paragraph in question, is'meant to refer to a new or additional lease. Substantially similar language has been construed in the case of Holloway v. Schmidt, 33 Misc. Rep. 747, as follows: “ The words ‘ first privilege of a renewal,’ as used in the lease, meant the prior right to a lease of five years upon terms the same as those in the lease of 1895, provided the landlord should give a lease.” It seems to me that that decision is a satisfactory and sound one, and should be followed here, which would mean that the interpretation of the clause we are considering in the lease in the case at bar means that the tenants shall have the first privilege of renewal of this lease at the end of their original term, provided the landlord leased the premises to any one. If this decision is correct, it would follow that something more was necessary than the mere service of a demand or notice of their decision to renew upon the landlord. I think there
It is claimed, however, by the defendants that because of the restraining order, outlined above, the defendant is enjoined from leaving the premises, and "that if this court should grant an order requiring "him to vacate- it will be in contravention of the terms of the restraining order granted by the Supreme Court. There is no merit in that contention. Obviously, it is intended on the part of the landlord to prevent the
The petitioner is, therefore,, entitled to a warrant, directing the removal of the defendants from- the premises in question.
Ordered accordingly.