Opinion
February, 1907.
Ernst, Lowenstein Cane (Bernard M.L. Ernst and Oscar Lowenstein, of counsel), for appellant.
Louis E. Salmon (E.H. Westerfield, of counsel), for respondent.
For some time previous to April 27, 1906, defendant was a monthly tenant of one Cohen, with an understanding that each would give thirty days' notice of an intention to terminate the lease. On April twenty-seventh, Cohen sold the premises to plaintiff, who took possession on April twenty-eighth; and, on or before May first, defendant moved out, without having given thirty days' notice to Cohen. The plaintiff sued for the rent for the month of May, 1906. The justice dismissed the complaint on the ground that Cohen was not the owner on May 1, 1906, and no necessity existed for giving plaintiff the thirty days' notice, as there existed no privity of estate nor of contract between plaintiff and defendant on May first. The question here presented is this: Did the failure of defendant to give thirty days' previous notice to Cohen deprive defendant of the right to move out and terminate the lease on May 1, 1906, notwithstanding the fact that, on April 27, 1906, Cohen had ceased to have any connection with the premises? Had there been a lease for a year, say, from June 1, 1905, undoubtedly defendant would have been liable to plaintiff, as successor of Cohen, for the rent for May, 1906; as that month would have been covered by such lease. Why does not the same rule apply to a monthly lease, where one of the stipulated conditions of such lease was that defendant should give thirty days' previous notice of his intention to terminate the lease? He could have given plaintiff such notice on May first and moved out on June first; but we do not see how plaintiff stood on May first in any different position from that in which Cohen stood on April 1, 1906, when, unquestionably, notice would have been necessary to terminate the lease. Unless specially reserved, rent follows the estate in reversion. By a general grant of a reversion the rent will pass with it as incident thereto; and the rent which was to accrue was a part of the realty and passed as such with the estate. Van Sicklen v. Paulson, 14 Barb. 654; Riley v. Sexton, 32 Hun, 248.
The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.
MACLEAN and AMEND, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.