Gottesfeld v. Weinstein

Appellate Terms of the Supreme Court of New York

Gottesfeld v. Weinstein

130 N.Y.S. 301

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 29, 1911

StatusPublished

This text of 130 N.Y.S. 301 (Gottesfeld v. Weinstein) 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

Gottesfeld v. Weinstein, 130 N.Y.S. 301 (N.Y. Ct. App. 1911).

Pincite

Opinion

BIJUR, J.

Plaintiff, a tenant, sues defendant, his landlord, for $750 alleged to be due him under a term of his lease, which provided that if the landlord should terminate the lease prior to May 1, 1911, as permitted to him, by giving a 30-day notice prior to the 1st day of any month, he would pay the tenant $750. The other pertinent provision of the lease is contained in a clause reading as follows:

The landlord has let and the tenant has hired the premises “subject to the action now pending of Shrady et al. v. Appley et al., and any judgment which may be entered therein and to the execution thereof.”

It developed that this action was a partition suit, and that a judgment was entered therein providing for the sale of the premises, and that the plaintiff, tenant, read a notice posted on the premises to the effect that there would be a sale thereof. The interlocutory judgment introduced in evidence, however, provides:

“That the lands and premises shall be sold subject to all existing leases and tenancies. * * * ”

Subsequently the landlord notified the tenant that, as possession of the premises had been demanded of the landlord by the new owner, he demanded possession from the tenant on the 1st of the following month. There was no reference in this notice to the suit of Shrady et al. v. Appley et al. There is nothing ambiguous or vague about the notice. It is a notice of the termination of a lease, given pursuant to its terms by the defendant to the plaintiff, and the reason [302]*302given by the landlord, namely, that the new owner demanded possession of him, has, neither in form nor in fact, any relation to the action of Shrady v. Appley, nor to the judgment therein.

There is not only no evidence in the case that the lease was terminated or in any way vacated by that suit or the judgment therein, but, on the contrary, from the interlocutory decree it would appear that neither the pendency nor the termination of that action could vacate the lease. It was evident, therefore, that pursuant to the terms of the lease the defendant terminated it, and the plaintiff was entitled to the $750 therein provided.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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BIJUR, J.

Plaintiff, a tenant, sues defendant, his landlord, for $750 alleged to be due him under a term of his lease, which provided that if the landlord should terminate the lease prior to May 1, 1911, as permitted to him, by giving a 30-day notice prior to the 1st day of any month, he would pay the tenant $750. The other pertinent provision of the lease is contained in a clause reading as follows:

The landlord has let and the tenant has hired the premises “subject to the action now pending of Shrady et al. v. Appley et al., and any judgment which may be entered therein and to the execution thereof.”

It developed that this action was a partition suit, and that a judgment was entered therein providing for the sale of the premises, and that the plaintiff, tenant, read a notice posted on the premises to the effect that there would be a sale thereof. The interlocutory judgment introduced in evidence, however, provides:

“That the lands and premises shall be sold subject to all existing leases and tenancies. * * * ”

Subsequently the landlord notified the tenant that, as possession of the premises had been demanded of the landlord by the new owner, he demanded possession from the tenant on the 1st of the following month. There was no reference in this notice to the suit of Shrady et al. v. Appley et al. There is nothing ambiguous or vague about the notice. It is a notice of the termination of a lease, given pursuant to its terms by the defendant to the plaintiff, and the reason [302]*302given by the landlord, namely, that the new owner demanded possession of him, has, neither in form nor in fact, any relation to the action of Shrady v. Appley, nor to the judgment therein.

There is not only no evidence in the case that the lease was terminated or in any way vacated by that suit or the judgment therein, but, on the contrary, from the interlocutory decree it would appear that neither the pendency nor the termination of that action could vacate the lease. It was evident, therefore, that pursuant to the terms of the lease the defendant terminated it, and the plaintiff was entitled to the $750 therein provided.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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Bluebook (online)

130 N.Y.S. 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gottesfeld-v-weinstein-nyappterm-1911.