Opinion
February 27, 1958
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, EUGENE M. McCARTHY, J.
Arthur T. Kaplan and Irving L. Kalish for appellant.
Myron J. Greene and Martin Greene for respondent.
The written agreement, wherein tenant covenanted to vacate on September 30, 1957 was based upon mutual considerations. It was coextensive with and contemplated a new reasonable rent and lease. The lease did not have the effect of merging the agreement into the lease. The lease merely recited the rights and obligations of the parties for the period fixed in the main agreement during which tenant was to remain in occupancy until the stated vacating date of September 30, 1957.
Landlord's proceeding is brought pursuant to the provisions of subdivision (g) of section 8 of the Business Rent Law (L. 1945, ch. 314, as amd.). It did not seek possession under the automatic surrender clause in the lease. It sought possession by virtue of the independent separate written agreement wherein tenant agreed to vacate on or before a specific fixed date. This was within the contemplation of the statute.
The final order should be reversed, with $30 costs, and final order directed for landlord as prayed for in petition, with costs.
HECHT, J.P., and TILZER, J., concur; AURELIO, J., dissents and votes to affirm on the opinion of the court below. ( 11 Misc.2d 1098. )
Final order reversed, etc.