Opinion
July, 1910.
Masten Nichols (Walter E. Hope and Henry F. Atherton, of counsel), for landlord-appellant.
Jay Noble Emley, for tenants-respondents.
This is an appeal by the landlord from a final order in summary proceedings dismissing the petition. The petition was based upon the ground of non-payment of rent, and that the landlord gave notice to the tenant that he exercised his option to terminate the lease, and that thirty days had expired since the giving of said notice and the commencement of these proceedings.
Under the terms of the lease it is provided that, in case of default by the tenant in any of the covenants, "the landlord may at his option terminate this lease at any time by giving thirty days' previous notice to the tenant."
It will be observed that this clause not only gives the landlord the option to terminate the lease, in case of default by the tenant, but it also specifically prescribes the manner in which this option is to be exercised, viz: the manner in which the lease itself is to terminate.
The event upon which the relation of landlord and tenant terminates is prescribed by the instrument creating the estate to be the giving of thirty days' notice to the tenant. The giving of this notice limits the term — causes it to cease and to come to an end. If, after the estate has thus terminated, the tenant continues in possession of the premises, he becomes a mere holdover; and the landlord in such case is entitled by the terms of the statute to institute summary proceedings. This case is different from Low v. Thompson, 58 Misc. 541, where the tenancy continued even after the default in payment of rent, until the landlord elected to terminate the tenancy by re-entry for condition broken. In that case, the landlord had not taken advantage of the option in the lease and terminated the tenancy by re-entry. The tenant was not, therefore, a holdover and the case was not within the terms of the statute authorizing summary proceedings. In the present case, the lease by its terms does not provide that, in order to terminate it, the landlord shall re-enter; but it is to come to an end upon the giving of the notice prescribed. This case more nearly resembles Martin v. Crossley, 46 Misc. 254, where the lease provided that the landlord might at his option terminate it for any breach of its conditions by giving five days' notice and "that upon the giving of said notice this lease and the said term and interests and all rights and claims in interest under this lease shall cease and end." The court held that the term had come to an end by virtue of the language of the lease upon giving the notice prescribed.
I think the order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
GUY and BIJUR, JJ., concur.
Order reversed and new trial ordered, with costs to appellant to abide event.