To determine whether or not there was a waiver we must focus on the landlord's intent as manifested by his acts. See B.J.M. Realty Corporation v. Ruggieri, 326 F.2d 281, 282-83 (2d Cir. 1964); Duplan, supra, 473 F. Supp. at 1091. We cannot say that this landlord has waived the deemed rejection.
E. g., Finn v. Meighan, supra, 325 U.S. at 301 [ 65 S.Ct. 1147, 89 L.Ed. 1624]; Model Dairy Co., Inc. v. Foltis-Fischer, Inc., 67 F.2d 704, 706 (2 Cir. 1933). Cf. B.J.M. Realty Corp. v. Ruggieri, 326 F.2d 281, 282 (2 Cir. 1963). In none of these cases would forfeiture have "seriously impaired", let alone totally frustrated, an arrangement by depriving the debtor of an asset absolutely necessary to its continued viability.
E. g., Finn v. Meighan, supra, 325 U.S. at 301; Model Dairy Co., Inc. v. Foltis-Fischer, Inc., 67 F.2d 704, 706 (2 Cir. 1933). Cf. B.J.M. Realty Corp. v. Ruggieri, 326 F.2d 281, 282 (2 Cir. 1963). In none of these cases would forfeiture have "seriously impaired", let alone totally frustrated, an arrangement by depriving the debtor of an asset absolutely necessary to its continued viability.
Id. at 466, 98 S.E.2d at 877, quoting Winder v. Martin, 183 N.C. 410, 411, 111 S.E. 708, 709 (1922). This same principle bars forfeiture under a lease provision terminating the demise if the tenant procures the appointment of a trustee under the Bankruptcy Act. BJM Realty Corp. v. Ruggieri, 326 F.2d 281, 282-283 (2 Cir. 1964). Section 70(b) of the Bankruptcy Act, 11 U.S.C. § 110(b), provides that "an express covenant that an assignment by operation of law or the bankruptcy of a specified party thereto or of either party shall terminate the lease or give the other party an election to terminate the same shall be enforceable."
Termination clauses such as those here involved, although not looked upon kindly by the courts as a general rule, are valid and enforceable. B.J.M. Realty Corp. v. Ruggieri, 326 F.2d 281 (2 Cir. 1964). The right to terminate may, however, be waived or the landlord be estopped to assert the right.
However, upon petition for rehearing, this court modified its opinion to the extent of instructing the District Court to hold a full hearing on the petition. 326 F.2d 281. On the basis of additional evidence introduced by Dilbert, the District Court reaffirmed its original position in accordance, it believed, with the standards prescribed by this court. Since this matter was last before this court, the following new facts have been introduced into evidence:
Accordingly, upon a breach courts will deem a forfeiture provision waived when by his conduct a landlord evinces "an intent to treat the lease as continuing rather than as terminated." BJM Realty Corp. v. Riggieri, 326 F.2d 281, 282 (2d Cir. 1964). This intent to waive the benefits of a forfeiture clause is most often inferred from the acceptance of rent which accrues after the lessees breach.
As the Court there stated: Cases upholding forfeiture pursuant to termination clauses include: Finn v. Meighan, 325 U.S. 300, 65 S.Ct. 1147, 89 L.Ed. 1624 (1945); Schokbeton Industries, Inc. v. Schokbeton Products Corp., 466 F.2d 171 (5th Cir. 1972); B.J.M. Realty Corp. v. Ruggieri, 326 F.2d 281 (2d Cir. 1963); Model Dairy Co. v. Foltis-Fischer, 67 F.2d 704 (2d Cir. 1933). Our decision does not deprive Section 70(b) of its statutory effect in those cases to which it is applicable.
In determining whether a lessor has waived a forfeiture provision in a lease, the court must ascertain whether there is by the landlord "conduct evidencing an intent to treat the lease as continuing rather than as terminated." BJM Realty Corp. v. Ruggieri, 326 F.2d 281, 282 (2d Cir. 1963), citing 650 Madison Avenue Corp. v. Wil-Low Cafeterias (In re Wil-Low Cafeterias), 95 F.2d 306 (2d Cir.), cert. denied 304 U.S. 567, 58 S.Ct. 950, 82 L.Ed 1533 (1938). This requires an analysis of the facts of each case. Fosko, 74 B.R. at 389; Lew Mark Cleaners Corporation, 86 B.R. at 334-35, 17 Bankr.Ct.Dec. at 873.
This test is the same analysis used in a lessor's alleged waiver of a forfeiture clause contained in a lease and in whether a lessor is estopped from asserting such a clause. Id.; see B.J.M. Realty Corp. v. Ruggieri, 326 F.2d 281, 282 (2d Cir. 1964); Realties 1430 v. Slaner (In re Duplan Corp.), 473 F. Supp. 1089, 1093 (S.D.N.Y. 1979); In re Fifth Avenue Originals, 32 B.R. 648, 656 (Bkrtcy.S.D.N.Y. 1983). The acts of the landlord in the present case do not evince an intent for the lease to continue.