Summary
In Scheele v. Waldman, 136 A.D. 679, even without express provision, it was held that the right to terminate a lease devolved upon the grantee of the landlord.
Summary of this case from Childs Co. v. BurkeOpinion
March 4, 1910.
Charles L. Fasullo, for the appellants.
William F. Hagarty, for the respondents.
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 Rollo, 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 Waldman Rieke, 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-five ($175) Dollars per month, provided, however, they signify their willingness in writing to the landlord not later than April first, nineteen hundred and nine, that they will so elect to exercise such option, and which notice in writing shall be accompanied with one month's rent payable in advance, which shall be retained by the landlord for the last month's rent, i.e., April first, nineteen hundred and ten. The aforesaid option at One hundred and seventy-five ($175) Dollars per month shall cover the entire building located at No. 23 Washington Avenue and No. 140 West Avenue, Wallabout Market, Brooklyn, N.Y."
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 Rollo 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 of One hundred and seventy-five ($175) dollars per month, and hand you herewith the sum of One hundred and seventy-five ($175) dollars, the same being one month's rent payable in advance, which will be retained by the landlord for the last month's rent, that is, April first, 1910. Our election covers the entire buildings located at No. 23 Washington Avenue and 140 West Avenue, Wallabout Market, Brooklyn, New York City, possession of all of which we herewith demand on the first of May, 1909."
On the 1st day of May, 1909, the landlord, Rollo, 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, Rollo, 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 No. 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 premises 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, 1909?
It was admitted on the trial that the demised premises were "conveyed" by Rollo to the present landlords on May 1, 1909. Rollo " conveyed" all his right, title and interest in and to the demised premises. There is no mention of a leasing or sub-letting by Rollo to the present landlords except in the brief submitted by the tenant. An absolute conveyance is all the record shows. Conveyances of all right, title and interest are not commonly made for limited terms; at any rate, not unless the duration of the term is specified. It must be held that the word "from" in the clause above quoted has the meaning of "between," and the landlord, Rollo, having actually conveyed the demised premises to the present landlords between the dates specified, the right to give the notice provided for in the lease accrued to the present landlords, and the lease terminated sixty days after that notice was given.
The provision of the lease that it should terminate upon the 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.
HIRSCHBERG, P.J., JENKS, BURR and THOMAS, JJ., concurred.
Final order of the Municipal Court reversed and new trial ordered, costs to abide the event.