Misc.] Appellate Term, First Department, June, 1921. TOMMASO GIORDANO, Landlord, Respondent, v. MORRIS ZAP and another, Tenants, Appellants. (Supreme Court, Appellate Term, First Department, June, 1921.) Landlord and tenant-notice of renewal under terms of lease landlord in foreign country summary proceedings. A lease containing an option of renewal providing the tenant ninety days previous to December 1, 1920, when the lease would by its term expire, gave notice of his desire to procure the new lease, was assigned by consent of the landlord and said assignees on August 16, 1920, by a postpaid letter which though directed to the landlord at a wrong address he did not deny having received, elected to renew the lease. The landlord, for fortyfive days more than ninety days next preceding the expiration of the original lease, was in a foreign land. Held, that a final order in summary proceedings against the assignees of the lease as holdovers will be reversed and a new trial granted. APPEAL by tenants from a final order of the Municipal Court of the city of New York, borough of The Bronx, first district, in favor of the landlord, after a trial by a judge without a jury. Maxwell Cohen, for appellant. Charles P. Hallock, for respondent. BIJUR, J. The tenants as assignees of a lease, which by its terms expired December 1, 1920, of premises used for business purposes, have been dispossessed as hold-overs. The assignment was consented to by the landlord. The lease contained the provision: "The tenant is hereby given an option of a lease upon said premises for an additional term of five years at the expiration of the term of this lease at the rental of $125 per month to contain covenants and agreements the same as this lease except as to the amount of rent Appellate Term, First Department, June, 1921. [Vol. 115. and the term provided the tenant shall give the landlord 90 days notice in writing previous to the expiration of this lease of his desire to procure such new lease." It was proved without objection that the landlord was in Italy from the middle of July until after December 1, 1920. Tenants' counsel testified that on August 16, 1920, he wrote and mailed to the landlord a letter reading: "Please take notice that my clients Messrs. Zap & Harnik, tenants of your premises on 180th street and Honeywell Avenue, Bronx, hereby elect to renew the lease dated November 1st, 1915 wherein Tillie Feldman is tenant, and said lease assigned to my clients on January 6th, 1920, pursuant to the option contained in lease." This letter was directed to 783 East One Hundred and Eightieth street. The landlord's address appears to have been 864 East One Hundred and Eightieth street. The tenant's attorney testified, however, that the imprint of his name and office address was on the envelope and that the same was not returned to him by the postoffice although full postage had been affixed thereto. The landlord did not even deny the receipt of the letter. As I understand the respondent's position on this appeal, it is that under the provisions of the lease, and upon the authority of Beakes v. Da Cunha, 126 N. Y. 293, 297, the only notice available to the tenants is personal notice. The general ruling to that effect to be found in the Beakes and similar cases, must be accepted as established, unless of course a difference in the provisions requiring the notice or the circumstances of the case exhibit a different intention. It is not important to determine whether the act of the landlord in leaving this country for Italy and remaining absent for a period forty-five days greater than Misc.] Appellate Term, First Department, June, 1921. the ninety days preceding the expiration of the term, is to be regarded as an interpretation of the lease to the effect that a written notice in ordinary course would satisfy this requirement or as a waiver of the requirement of personal notice. In any event, it is clear that the landlord could not have anticipated that under the circumstances the tenants must discover his whereabouts in Italy in order to give him the notice required. Final order reversed and a new trial granted, with thirty dollars costs to appellants to abide the event. DELEHANTY and FINCH, JJ., concur. Final order reversed and new trial granted, with thirty dollars costs to appellants to abide event. BROADWAY-JOHN Respondent, STREET v. HUYLER'S, Tenant, Appellant, VACUUM CLEANER SPECIALTY Co., INC., Tenant. (Supreme Court, Appellate Term, First Department, June, 1921.) Landlord and tenant-purchaser of property from landlord cannot, before taking title, take advantage of a cancellation clause in the lease summary proceedings. A six months' notice to a tenant to remove from the premises by one not having title thereto does not operate to cancel the lease or require the tenant to quit the premises. A lease provided that if within five years from May 1, 1906, the tenant did not exercise his privilege under the lease to tear down the building and erect a new one in its place, the landlord should have the right to cancel the lease upon giving a six months' written notice effective at the expiration of the term and upon payment of a certain sum of money. Neither of the parties took any action under the lease. Held, that a six months' written notice to quit given to the tenant by the land Appellate Term, First Department, June, 1921. [Vol. 115. lord's grantee of the premises, prior to taking title, in its own name, was insufficient, and a final order in a summary proceeding awarding said grantee possession of the premises will be reversed on the ground of failure to give the notice required by law. APPEAL from a final order of the Municipal Court of the city of New York, borough of Manhattan, ninth district, awarding plaintiff possession of certain premises in the borough of Manhattan. Roger Hinds (Edward F. Clark, of counsel), for appellant. Alfred J. Wolff, for respondent. DELEHANTY, J. The tenant herein occupied certain premises at 133 West Forty-second street in the city of New York under a lease which provided that within five years from the 1st day of May, 1906, it should have the privilege to tear down the building on the premises and erect a new one in its place, but if it did not exercise the privilege, within the time specified, the landlord shall thereafter have the right upon giving six months' notice in writing, and upon payment of $10,000 to cancel the lease for the purpose of erecting said building on the premises. Upon the trial it appeared that both parties to the lease failed to take any action under the foregoing provisions. It did appear, however, that the landlord entered into a contract for the sale of the premises, and that the purchaser thereof, the plaintiff herein, on October 29, 1919, prior to taking title, gave written notice in its own name to the defendant to remove at the end of six months, effective May 1, 1920. The court below has held that this notice was sufficient, and has granted the final order applied for. Such order, however, cannot be sustained. Misc.] Appellate Term, First Department, June, 1921. When plaintiff gave notice to remove it had not yet taken title to the premises, and under the law of this state, such notice did not operate to cancel the lease or require the tenant to quit the premises. In a similar situation the Court of Appeals in the case of Reeder v. Sayre, 70 N. Y. 180, said: "And now comes the query, whether Sayre, being only the vendee by contract, and not having yet a legal title to the land, could give a notice to quit which would operate to affect the rights of the Reeders (the lessees) Sayre (lessor's vendee) did give notice to quit, sufficient in form and substance, if he had a right to give that notice. But he was not, until after the day last named, the owner of the legal title. Before that he had but an equitable title, which might or might not become a legal title. The tenant is to act upon the notice at the time it is given; hence it ought to be such a one as he can act upon with safety. The equitable owner of the title cannot give such a notice.” Other authorities to the same effect are Scheele v. Waldman, 136 App. Div. 679; Stoddard v. Winter Realties, Inc., 179 N. Y. Supp. 741, 743; Griffin v. Barton, 22 Misc. 228; 2 Tiffany Landl. & Ten. § 198, p. 1438. There are other points raised by counsel for consideration herein, but in the view that we take of this matter, it is unnecessary to discuss them. We prefer to rest our decision herein upon the failure to give the notice required by law. Order reversed, with thirty dollars costs, and petition dismissed, with costs. FINCH, J., taking no part; BIJUR, J., concurs. Order reversed, with thirty dollars costs. |