Zeisloft v. George V. Blackburne Co.

Full title: MARIA BOVE, Appellant, v . VINCENZO COPPOLA, Respondent

Court: Supreme Court, Appellate Term

Date published: Dec 1, 1904

45 Misc. 636 (N.Y. App. Term 1904)

91 N.Y.S. 8

Opinion

December, 1904.

Barra Cuoco, for appellant.

Sol. A. Hyman, for respondent.

BISCHOFF, J.

The tenant was in possession under a sublease. The principal lease provided for its cancellation and surrender at the landlord's option upon payment of $150 to the lessee, and it was canceled and surrendered precisely within the terms of this provision, yet the landlord has been denied the right to possession as against this subtenant because the latter was not a party to the surrender, upon the theory that his lease endured, therefore, within the limit of the term of the original lease. Weiss v. Mendelson, 24 Misc. Rep. 692; Eten v. Luyster, 60 N.Y. 252. These authorities simply declare the recognized rule that the subtenant's rights, measured by his lessor's (the principal tenant's) estate under the principal lease, cannot be cut down by some new dealings between the principal lessor and lessee, but, obviously, where the principal lease comes to an end by an act done within its very terms, the subtenant's right of possession falls with it. As was said in Eten v. Luyster, supra, at p. 258, relative to a similar provision for a termination before the full period of the lease "A proceeding under that provision would have put an end to the term of Morrison, and the right of the plaintiff, his lessee, would have fallen with the expiration of that term."

Upon the admitted facts, possession should have been awarded the landlord.

Final order reversed, and new trial ordered, with costs to the appellant to abide the event.

FREEDMAN, P.J., and GILDERSLEEVE, J., concur.

Final order reversed and new trial ordered, with costs to appellant to abide event.