Such letter specifically refers to the September 28th notice and contains no reference to the September 29th notice. The reason why respondent desires to establish that the September 28th notice was rendered legally ineffective by the September 29th notice is that a showing of the conveyance of the leased premises from Central to Mitchell after the September 28th notice, but prior to the September 29th notice, would bring the case at bar within the facts of Gorman v. General Outdoor Advertising Co., Inc., 320 Ill. App. 339, 50 N.E.2d 854; Gates v. Norton, 228 Ill. App. 96; and Payne v. Brathwaite, 113 Misc. 517, 185 N.Y. Supp. 107, which held that a grantee, such as Mitchell, cannot exercise the right given the lessor to terminate in the event of sale after the conveyance has been made to the purchaser. In any event, the respondent, by removing from the premises pursuant to the September 28th notice, has waived any defect in the manner of exercising the option.
This conclusion is strengthened when the lease (as in this case) contains the provision that the lease is binding on the lessor "and its assigns."Gorman v. General Outdoor Advertising Co., 320 Ill. App. 339, 50 N.E.2d 854 (1943); Gostin v. Needle, 185 Md. 634, 45 A.2d 772 (1946); Scheman v. Adore Realty Corp., 117 N.Y.S.2d 884 (1952); Petition of Furio, 272 App. Div. 941, 72 N.Y.S.2d 425 (1947); Sitt v. Fifth Ave. Realty Co., 31 Misc.2d 803, 220 N.Y.S.2d 526 (1961); Payne v. Brathwaite, 113 Misc. 517, 185 N.Y.S. 107 (1920); Krim Realty Corp. v. Varvori, 97 Misc. 407, 161 N.Y.S. 229 (1916).Morlee Sales Corp. v. Manufacturers Trust Co., 9 N.Y.2d 16, 210 N.Y.S.2d 516, 172 N.E.2d 280 (1961); 49 Am.Jur.2d Landlord and Tenant §§ 1006, 1009 (1970); 51C C.J.S. Landlord Tenant § 93(3) (1968).
Apt language to avoid the effect of the cases could have been, but was not, chosen. The notice served upon the tenants is ineffectual to cancel the lease as a consequence of the meaning which attaches to paragraph 18 of the lease set out in full in the petition ( Payne v. Brathwaite, 113 Misc. 517; Krim Realty Corporation v. Varveri, 97 Misc. 407, 409; Hotel Dauphin v. Remey, 53 N.Y.S.2d 301 [not officially published]; Gostin v. Needle, ___ Md. ___, 45 A.2d 772; 3 New York Law of Landlord and Tenant, § 984, p. 44; Gorman v. General Outdoor Advertising Co., 320 Ill. App. 339; Gates v. Norton, 228 Ill. App.? 96; Fallek v. Cramer, 191 S.W.2d 375 [Mo.]). The case of Scheele v. Waldman (136 App. Div.. 679) is not to the contrary.