Sisson Realty Corp. v. Mathews

225 A.D. 716

Opinion

Judgment reversed on the law and facts, with costs, and complaint dismissed, with costs, on the ground that the lease was renewed by the giving of the notice of renewal by the defendant Matthews, and defendant Matthews is entitled to possession of the premises. (Fischer v. Ginzburg, 191 App. Div. 418, 422; Storms v. Manhattan R. Co., 77 id. 94, 98; affd., 178 N. Y. 493; 35 C. J. 1037, § 178; Masset v. Ruh, 235 N. Y. 462.) Van Kirk, P. J., Hinman and Hill, JJ., concur; Davis and Whitmyer, JJ., dissent and vote for affirmance on the ground that it does not appear that it was the intention of the parties that the permission to sublet, indorsed on the lease, should operate as a modification thereof and extend to a renewal. (Miller v. Newton-Humphreville Co., 116 Atl. [N. J.l 325; Fischer v. Ginzburg, 191 App. Div. 418; Fay v. Klots, 199 N. Y. Supp. 49, 50.) The court disapproves finding of fact numbered eighth, and the first provision of finding numbered seventh as follows: “ That both defendants Mathews and Murphy have held over and continued in possession of said premises since October 1, 1927, without legal right or authority.” [131 Misc. 714.]