Opinion
March, 1907.
Eisman Levy, for appellant.
William B. Ellison, Corporation Counsel (Theodore Connoly and Thomas Noonan, of counsel), for respondent.
On the 11th day of February, 1903, a lease was executed between G.C. St. John, as executor, etc., as landlord, and the city of New York (acting through its street cleaning commissioner) as tenant, of a plot of ground on the north side of One Hundred and Sixteenth street in the borough of Manhattan. This lease was entered into under the authority of section 541 of the Greater New York charter, which authorizes the commissioner of street cleaning to enter into the lease on behalf of the city, with the consent and approval of the commissioners of the sinking fund. The commissioners of the sinking fund, by resolution adopted October 22, 1902, consented to the execution of the lease to the street cleaning commissioner by the estate of William C. Andrews, with a privilege of either party to terminate the lease at the expiration of one year, on sixty days' notice in writing. The lease in question was to commence on October 1, 1902, and continue until October 1, 1907. It contained the following clause "with the privilege, however, to either party to terminate the lease at the expiration of one year on sixty (60) days' notice in writing." This clause was contained in the resolution of the commissioners of the sinking fund, which authorized the making of the lease. On October 25, 1905, G.C. St. John, as executor of the estate of W.C. Andrews, deceased, conveyed the premises described in the lease to one David G. Ludins. The next day, on October 26, 1905, and three years after the commencement of the term, said David G. Ludins notified the city of New York in writing that he desired to terminate the lease within sixty days from that date. Thereafter, on November 9, 1905, the said David G. Ludins conveyed the premises to the M. Fine Realty Company, the petitioner herein. Under the terms of the lease the tenancy began on the 1st day of October, 1902, and will expire on the 1st day of October, 1907, although the lease was formally executed between the parties and delivered on February 11, 1903. The only question to be determined in this case is the meaning under this statement of facts of the clause contained in the lease "with the privilege, however, to either party to terminate the lease at the expiration of one year on sixty (60) days' notice in writing." This clause undoubtedly means at the expiration of one year from the commencement of the term provided by the lease, that is to say, one year from October 1, 1902. It is contended by the appellant that sixty days' notice could be given at the expiration of the one year, or at any time thereafter, and that the only restriction on the privilege reserved to the landlord to give the notice at any time was that it should not be given during the first year of the term. The phrase "at the expiration of one year" defines the limit of time. It marks the close of a period, not its beginning, as said in Ferree v. M.O.H. Coal Co., 29 Misc. 624. The appellant in his brief argues that it is impossible to determine from what date the year was to begin, because, as he alleges in his brief, the lease does not fix any time when the year at the expiration of which the notice may be given begins to run, nor does the resolution of the commissioners of the sinking fund. The resolution was passed October 22, 1902, and the lease was formally entered into February 11, 1903, and so it is argued the 1st of October, 1903, would not be a year from either of these dates. The appellant loses sight apparently of the fact that the lease, although dated February 11, 1903, expressly states that the tenant is to have and to hold the premises "from the first day of October, 1902, for and during and until the full end and term of five years; thence and next ensuing and fully to be completed and ended," and that the resolution of the commissioners of the sinking fund approves the lease "for a term of five years from October 1, 1902, at an annual rental of twelve hundred ($1,200) dollars payable quarterly, with a privilege to either party to terminate the lease at the expiration of one year on sixty days' notice in writing." This resolution is embodied in extenso in the lease itself. It is also conceded that the city went into possession of the premises on October 1, 1902, although that fact is not material. Whatever date may be assigned by the appellant as the beginning of the year at the expiration of which the notice may be given is immaterial. It is conceded that more than one year, and, as a matter of fact, about three years, passed after any of the dates mentioned before the giving of the sixty days' notice to terminate the lease. Such notice was too late. Ferree v. M.O.H. Coal Co., 29 Misc. 624. It is unnecessary to discuss whether or not the provisions as to the sixty days' notice constitutes a covenant running with the land.
The judgment should be affirmed, with costs.
Judgment affirmed, with costs.
GILDERSLEEVE and DAVIS, JJ., concur.