Fifth Avenue Building Co. v. Potaras

Appellate Terms of the Supreme Court of New York

Fifth Avenue Building Co. v. Potaras

78 Misc. 150, 137 N.Y.S. 896

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 15, 1912

StatusPublished

This text of 78 Misc. 150 (Fifth Avenue Building Co. v. Potaras) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fifth Avenue Building Co. v. Potaras, 78 Misc. 150, 137 N.Y.S. 896 (N.Y. Ct. App. 1912).

Pincite

Opinion

Seabury, J.

Appeal by a tenant from a final order -rendered in favor of a landlord in summary proceedings. This summary proceeding was instituted by the landlord to remove the tenant, on the ground that the tenant held over after the termination of his estate. The lease, under which the tenant entered into possession, provided that the tenant should “ maintain a first class flower stand, and keep the place occupied by him and the adj oining pavement clean and free from refuse, and in case of his failure to do so, this lease shall, at the option of the landlord, expire and come to an end.” It is alleged in the petition that this covenant of the lease was violated by the tenant. The mere breach of the condition contained in the lease did not give the landlord the right to institute these proceedings. The tenant cannot be said to have held over until his estate terminated. It is true that the estate was such that it might be terminated at the option of the landlord, but neither the allegations of the petition nor the proof established that the landlord ever exercised this option. The failure of the landlord to exercise the option left the estate of the tenant unterminated, and consequently the tenant was not a hold-over, and the landlord had no right to institute the present proceedings. Janes v. Paddell, 67 Misc. Rep. 420. As the estate of the tenant was not terminated before the commencement of these proceedings, it is unnecessary to determine as to the manner in which the landlord should, under the lease, have exercised his option, provided he elected so to do. The provisions of the lease upon which the appellant relies, whereby the tenant waives the right to notice of the institution of legal proceedings, cannot be interpreted to change the character of the tenant’s estate, and to convert an estate upon condition into an estate upon limitation.

It follows that the order appealed from should be reversed with costs, and the petition dismissed with costs.

Guy and Bijub, JJ., concur.

Judgment reversed, with costs, and petition dismissed, with costs.

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Seabury, J.

Appeal by a tenant from a final order -rendered in favor of a landlord in summary proceedings. This summary proceeding was instituted by the landlord to remove the tenant, on the ground that the tenant held over after the termination of his estate. The lease, under which the tenant entered into possession, provided that the tenant should “ maintain a first class flower stand, and keep the place occupied by him and the adj oining pavement clean and free from refuse, and in case of his failure to do so, this lease shall, at the option of the landlord, expire and come to an end.” It is alleged in the petition that this covenant of the lease was violated by the tenant. The mere breach of the condition contained in the lease did not give the landlord the right to institute these proceedings. The tenant cannot be said to have held over until his estate terminated. It is true that the estate was such that it might be terminated at the option of the landlord, but neither the allegations of the petition nor the proof established that the landlord ever exercised this option. The failure of the landlord to exercise the option left the estate of the tenant unterminated, and consequently the tenant was not a hold-over, and the landlord had no right to institute the present proceedings. Janes v. Paddell, 67 Misc. Rep. 420. As the estate of the tenant was not terminated before the commencement of these proceedings, it is unnecessary to determine as to the manner in which the landlord should, under the lease, have exercised his option, provided he elected so to do. The provisions of the lease upon which the appellant relies, whereby the tenant waives the right to notice of the institution of legal proceedings, cannot be interpreted to change the character of the tenant’s estate, and to convert an estate upon condition into an estate upon limitation.

It follows that the order appealed from should be reversed with costs, and the petition dismissed with costs.

Guy and Bijub, JJ., concur.

Judgment reversed, with costs, and petition dismissed, with costs.

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Bluebook (online)

78 Misc. 150, 137 N.Y.S. 896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fifth-avenue-building-co-v-potaras-nyappterm-1912.

Opinion

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