Bove v. Coppola

45 Misc. 636, 91 N.Y.S. 8

Opinion

Bischoff, J.

The tenant was in possession under a sublease. The principal lease provided for its cancellation and surrender at the landlord’s option upon payment of '$150 to the lessee, and it was canceled and surrendered precisely within the terms of this' provision, yet the landlord has been denied the right to possession as against this subtenant because the latter was not a party to the surrender, upon the theory that his lease endured, therefore, within the limit of the term of the original lease. Weiss v. Mendelson, 24 Misc. ; Eten v. Luyster, 60 N. Y. 252. These authorities simply declare the recognized rule that the subtenant’s rights, measured by his lessor’s (the principal tenant’s) estate under the principal lease, cannot be cut down by some new dealings between the principal lessor and lessee, but, obviously, where the principal lease comes to an end by an act done within its very terms, the subtenant’s right of possession falls with, it. As was said in Eten v. Luyster, supra, at p. 258, relative to a similar provision for a termination before the full period of the- lease “A proceeding under that provision would have put an end to the term .of Morrison, and the right of the plaintiff, his lessee, would have fallen with the expiration of that term.”

Upon the admitted facts, possession should have been awarded the landlord.

Final order reversed, and new trial ordered, with costs to the appellant to abide the event.

Freedman, P. J., and Gildersleeve, J., concur.

Final order reversed and new trial ordered, with costs to appellant to abide event.