Kelly v. Varnes

52 A.D. 100, 64 N.Y.S. 1040

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1900
• Status: Published

Opinion

Laughlin, J.:

The provision of the lease with reference to an extension of the term is somewhat indefinite, but not sufficiently so to render it void for uncertainty. It at least gave the tenant the privilege of a further term of one year at the rental specified for the first year. (Voege v. Ronalds, 83 Hun, 114; Tracy v. Albany Exchange Co., 7 N. Y. 472; Western Transportation Co. v. Lansing, 49 id.. 499 ; Kolasky v. Michels, 120 id. 635 ; Smith v. Littlefield, 51 id. 539; Pugsley v. Aikin, 11 id. 494.)

The holding over by the tenant for the period specified was sufficient evidence of an election on his part to accept the privilege of an extension for one year under the lease, inasmuch as the lease did not require any other notice of such election. (Voege v, Ronalds, supra; Kelso v. Kelly, 1 Daly, 419, 424; McAdam Landl. & Ten. [3d ed.] § 157.)

The lease under consideration gives the landlord the .right to “ re-enter ” or “ resort to any legal remedy for the tenant’s failure to pay the rent as agreed; but it does not in terms provide that such failure will ipso facto terminate the tenancy or effect a forfeiture or cancellation of the lease. In such case the term does riot expire by its own limitation. The landlord might have terminated the lease by making a common-law demand (Section 1504, Code of Civil Procedure, would not be applicable as. rent was not due six months before April 1, 1899) for the rent and giving notice of her election to declare the forfeiture and might then have brought an action of ejectment to obtain possession; but then the léase would terminate, not by expiration of the term, but by the election and act of the landlord, and consequently summary proceedings would not lie. (Beach v. Nixon, 9 N. Y. 35 ; Miller r. Levi, 44 id. 492; Kramer v. Amberg, 15 Daly, 205; Kramer v. Amberg, 53 Hun, 427, 429; Horton v. N. Y. C. & H. R. R. R. Co., 12 Abb. N. C. 30 ; affd., 102 N. Y. 697; Penoyer r. Brown 13 Abb. N. C. 82; Estelle v. Dinsbeer, 9 Misc. Rep. 487.)

The proceeding was instituted on the theory that the tenant’s term expired at the end' of the first year. It was not contended, however, that the provision of the lease giving the tenant the right to an extension was unenforcible, but it was claimed that the payment of the rent according to the tenor of the lease for the first year was a condition precedent to the tenant’s right to elect to hold for a longer term. It is claimed that the justice, has found, in accordance with the petitioner’s theory, that the tenant failed to pay the rent for the first year,, and that he thereby lost the right of exercising the-privilege, conferred by the lease, of holding for a. further term. No authority is cited to support this proposition,. and we fail to .appreciate its force. If the-tenant defaulted in ‘the-payment of rent for the first year, such default occurred on or .before the 1st-day of November,-1898. The landlord was then at-liberty to proceed to declare a forfeiture or she cotild waive such right and acquiesce in the continuance of the tenancy. She took jno step to terminate the lease Until after the tenant had. remained in possession upwards of six weeks under his election to hold for a further term.

It follows from these views that the judgment of the County Court and the final order of the Justice’s-Court must be reversed, with costs to the- appellant. •

All concurred.

• Judgment .of County Court and final order of Justice’s Court reversed,, with costs:. -