Payne v. Schollhamer

30 Misc. 755, 63 N.Y.S. 229

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1900
• Status: Published

Opinion

Per Curiam.

The plaintiff, on March 19, 1898, leased to the defendant a certain dwelling-house known as No. 1088 Washington avenue. Prior to the execution of the lease, eleven feet of the front of the premises had been acquired by the city of New York for the pmpose of widening Washington avenue. The defendant went into possession under the lease and remained until May 18, 1899. This action is for rent from May to September, 1899, inclusive. The justice awarded judgment for the May rent only, and plaintiff appeals.

The lease contained the following clause: “The above letting is subject, however, to any widening or change of grade of the avenue, and shall cease and determine in case the premises should he-come untenantable by reason of such alteration.” Prior to May 8, 1899, a printed notice purporting to he signed by the commisr sioner of highways was pasted on the building announcing a sale on May eighth of the building, etc., within the lines of Washington avenue. This included the sale of eleven feet of the building rented by defendant. The notice of sale provided that the purchaser must remove the building within thirty days from date of sale, in default of which the commissioner himself would remove them. The sale took place on the advertised day (May eighth), and the building was bought in by a third party, who, as it afterwards proved, was an agent of plaintiff, and purchased for him, but there is no evidence that defendant knew or had notice of this fact. The lease expressly contemplated and provided for its abrogation in case the premises should become untenantable in consequence of the widening of Washington avenue. I do not think that the tenant was bound to stay in possession until the purchaser or the city actually began to tear the front of the house down. He was entitled to believe that the purchaser of the city might, at any moment after the expiration, of thirty days after May eighth, without further warning or notice, proceed to demolish eleven feet of the front of his building, and was entitled to take reasonable precautions to protect himself against such an event. I think the premises really became “ untenantable ” so soon as ownership of the building passed out of the landlord in such manner that the property might he destroyed at any moment.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment affirmed, with costs.