Opinion
November, 1902.
Joseph Wilkenfeld, for appellants.
Manheim Manheim, for respondent.
About the 7th day of March, 1902, one Barkley let certain premises to the appellants for the term of two years from May 1, 1902, the lease providing that, if the lessor sold the premises before the expiration of the first year of the lease, the tenant should vacate and surrender the premises "on receiving a three months' notice and the equivalent of three months' rent." Barkley conveyed the premises to one Meyer, and served, on May first, a notice upon the tenants that he had sold the property, and that possession would be required on the first of August, on which day the equivalent of three months' rent would be paid the tenants. Meyer sold to Ronginsky, who collected the rents for May, June and July. On July thirty-first, as he testified, the landlord asked the tenants to surrender, and offered them $250, the equivalent of three months' rent; both refused to take the money and to give up the premises. On August first, according to the landlord, the same thing occurred again. The tenants wanted $1,000. "By consent the jury were discharged by the court, there being no question of fact for them to pass upon." As noted above, the final order was in favor of the landlord. It is contended here that, under the statute, summary proceedings were not maintainable to remove the tenants, because the lease had not expired by its own limitations, or by words of the demise, but was attempted to be ended by the volition of the landlord. This is not tenable. In the case of Miller v. Levi, the lease to Levi was "with the privilege reserved to terminate the lease at the end of every year, by giving sixty days' previous notice, in case the landlord should desire to sell or rebuild." Objection was made before the county judge of Erie, and insisted upon before the Commission of Appeals, that the judge had no jurisdiction because this special proceeding can be resorted to only where the term of the lessee has expired by lapse of time. The court of last resort held ( 44 N.Y. 489, 495) that the provision was not a condition but a limitation, and that the term expired by force of the sale, and notice in sixty days thereafter without any further act of the lessor. This ruling is applicable to the case at bar. If it be urged that in the case at bar actual payment of the equivalent of three months' rent is one of the acts contemplated in the lease to create its expiration, it is enough to reply that, when the tenants refused its proffer, they eliminated the payment from the incidents essential to the termination of the lease. Having been proffered on due occasion, it had not to be tendered again or paid into court. Whether the sum can be recovered as a debt is not here under consideration. This last observation also meets the points severally raised for the tenants, that the Municipal Court has no power to enforce a covenant for the surrender of a lease; nor to compel both parties to keep their covenants; and that there is no way by which the court can see to it that the tenants receive the $250. The conduct of the tenants has made a consideration of these unnecessary.
The final order appealed from is affirmed, with costs to the respondent.
FREEDMAN, P.J., and BLANCHARD, J., concur.
Final order affirmed, with costs to respondent.