Misc.] Supreme Court, May, 1921. the Supreme Court and the case is pending there and the Court of General Sessions has no further jurisdiction in the matter. The application for a writ of prohibition is, therefore, granted. Application granted. GEORGE MASSET, Plaintiff, v. CLARA RUH, Defendant. (Supreme Court, Kings Special Term, May, 1921.) Landlord and tenant option to purchase premises must be exercised during term of original lease and not of renewal lease specific performance not decreed where option exercised during renewal term. There is a clear distinction between a renewal of a lease on the same or similar terms and conditions as are contained therein, and a new lease containing like agreements and covenants. 66 By a three years' lease the tenant was given an option for a renewal for a like term upon "the same terms and conditions" and also an option to purchase the leased premises and those adjoining at any time during the term and existence of lease." The tenant during the renewal term, but not before, gave the notice provided for by the lease, of his election to exercise the option of purchase and tendered the purchase price, which was refused. Held, that the tenant not having within the term of the original lease exercised the right to purchase which was an independent covenant collateral to the demise, though contained in it, the landlords were entitled to judgment in an action to compel specific performance of the option. ACTION for specific performance. Charles Pearl, for plaintiff. Nicholas Dietz, for defendant. Supreme Court, May, 1921. [Vol. 115. BENEDICT, J. This is an action for specific performance. Defendant and her husband, now deceased, being owners of premises Nos. 291 and 295 Ridgewood avenue, Brooklyn, made a lease of premises numbered 295 Ridgewood avenue to plaintiff to be used for garage purposes for the term of three years from August 15, 1916, at a rental of $540 a year. This lease contained an option for a renewal in the following words: "Option for renewal for 3 years from expiration of lease on the same terms and conditions." It also contained a clause as follows: "The Parties of 1st part gives the party of 2d part the right and option to purchase the premises Nos. 291 and 295 Ridgewood Ave. for the sum of $10,000 at any time during the term and existence of lease." The lessee did not exercise the option to purchase during the original term, but did exercise the option to renew the lease, and now, during the renewal term, he has given notice of his election to exercise the option to purchase the demised premises and the adjoining premises No. 291 Ridgewood avenue. He has tendered the purchase money to the defendant, who has refused to grant the fee of the property, claiming that the option to purchase could be exercised only during the original term of the lease. Hence plaintiff seeks to compel, through an action for specific performance, a conveyance of the property. When the original lease expired on August 15, 1916, the plaintiff continued in possession of the demised premises, after having given notice of his election to renew the lease, and has continued in possession down to the present time, paying rent as originally reserved. The plaintiff contends that the renewal of the lease extended the period of the option to purchase the premises, and he relies principally upon the case of Pflum v. Spencer, 123 App. Div. 742. He claims that Misc.] Supreme Court, May, 1921. this case involved the "exact question" which is here presented, but I find myself unable to agree with him in this regard. In the Pflum case the option of renewal read as follows: "And it is further agreed by the party of the first part that she will grant a further lease of the aforesaid premises for a term of one year commencing at the expiration of the term herein granted at the same yearly rental and containing like agreements and covenants as in these presents contained conditioned upon the party of the second part giving to the party of the first part sixty days' notice in writing of her desire or her intention to avail herself of said option of renewal." The distinction between that option and the one in the present case rests upon the words "and containing like agreements and covenants as in these presents contained." In the present case, as has been noted, the clause read: "Option for renewal for 3 years from expiration of lease on same terms and conditions." There is a clear distinction, it seems to me, between a renewal on the same or similar terms and conditions as are contained in a lease and a new lease containing like agreements and covenants. The right to purchase the demised premises and the adjoining premises was not a term or condition of the demise. It was an independent covenant collateral to the demise and contained in it. It was what Chancellor Kent described as an "accidental covenant" and not an essential part of the lease. See Rutgers v. Hunter, 6 Johns. Ch. 215. I am therefore constrained to hold in the present case that the plaintiff, not having exercised the option to purchase within the term of the original lease, is not entitled to equitable relief of the nature sought in this action. Judgment for defendant accordingly, with costs. Supreme Court, May, 1921. [Vol. 115. JAMES TIEDEMANN, Plaintiff, v. MARIA TIEDEMANN, WILLIAM FISHER and RUTH C. FISHER, his wife, Defendants. (Supreme Court, Queens Special Term for Trials, May, 1921.) Contracts oral agreement to reconvey real property upheld husband and wife-fraudulent conveyances Statute of Frauds. At the time when plaintiff, a truckman, had an accident on a railroad a boy riding with him was killed. In an action against the railroad company on his cause of action plaintiff recovered judgment and in fear of an action against him by the parents of the boy, he gave his wife a deed of conveyance of the premises where the family lived, upon her oral agreement to reconvey the property to him at any time. Thereafter he improved the premises and built a stable, paid all the taxes and insurance, besides paying off a mortgage on the property. Subsequently the wife, having left her husband, who is still in possession, without consultation with him, conveyed the property to a neighbor and received and retained the consideration paid. In an action to compel a reconveyance of the premises and for cancellation of the purchase money bond and mortgage made by the alleged innocent purchaser to plaintiff's wife, she testified that she did not remember the conversation which resulted in her oral agreement to reconvey. Held, that the plaintiff's version, upon which the court must rely, clearly upheld the contention of the plaintiff as to the oral agreement to reconvey. The alleged innocent purchaser, who knew both plaintiff and defendant and who was in the court room at the trial but did not take the stand, held not to be a purchaser in good faith, and that plaintiff was entitled to the relief asked for. ACTION to compel reconveyance of real property founded upon an oral agreement and for cancellation of purchase money mortgage. Rawdon W. Kellogg, for plaintiff. Elmer J. Ashmead, for defendant Maria Tiede mann. Adolph Herzog, Jr., for defendant William Fisher. Misc.] Supreme Court, May, 1921. DIKE, J. The problem here is, does the Statute of Frauds act as an insuperable obstacle to the reconveyance of the premises in question to the plaintiff, and to the cancellation of the purchase money, bond and mortgage made by the alleged innocent purchaser, William Fisher, to Maria Tiedemann, wife of plaintiff? Plaintiff Tiedemann and defendant Maria Tiedemann are husband and wife. They have two children, one fifteen and the other eleven years of age. Plaintiff is a truckman, working for the city. Several years ago he bought a small house in Queens on plot of two lots, taking title in his own name, and in these premises he lived with his family. The complaint alleges, and the evidence shows, that plaintiff had an accident on the Long Island Railroad in November, 1918. At that time a boy riding with the plaintiff was killed. Plaintiff sued the railroad company and recovered on his cause of action, and, fearing that some action might be started against him by the parents of the boy, the matter was talked over with his wife, and the plaintiff said: "I guess I better sign the house over to you. You can keep it for a home for us. So she says, all right. Now, I said to her, can I have this place back at any time I want it. She says, yes, two or three years — any time you want it back, you can get it back." Plaintiff thereupon deeded the property to the defendant, his wife, for the consideration of $1, and in so doing, denuded himself of all property, save the horses and truck. Since that time, the plaintiff has improved the property, putting water into the house and building a stable on the place big enough to stable four horses, and testimony is that to replace it would cost about $1,200. He has improved the surroundings of the house and added to its value in other ways, and plaintiff alleges that he received an |
