Hopkins Realty Co. v. Kirschbaum

Full title: THE HOPKINS REALTY COMPANY, Respondent, v . BERTHA V. KIRSCHBAUM, Appellant

Court: Supreme Court, Appellate Term, First Department

Date published: Feb 1, 1914

84 Misc. 51 (N.Y. App. Term 1914)

145 N.Y.S. 882

Opinion

February, 1914.

Wingate Cullen (Clarence Sage Woodman and Edmund J.A. Williams, of counsel), for appellant.

W. Bennett Marx, for respondent.

BIJUR, J.

This action is brought to recover rent of a flat for the month of October, 1913, upon plaintiff's claim that a previous lease between the parties of the same flat had become automatically renewed by failure of the tenant to give notice of intention to surrender the same as there provided.

On this appeal both parties claim that only a question of construction is involved — and indeed a question of the construction of the terms of the lease without the need of considering any extraneous circumstances — and both agree that there were no relevant disputed questions of fact.

The lease is dated May 29, 1912, and it grants to the tenant-defendant a term of one year and four months from June 1, 1912, to October 1, 1913. The provision of the lease which has given rise to this action reads as follows:

"11th: That this letting and hiring shall be deemed to be, and shall be, extended and renewed by and against the parties hereto for the further term of one year from the expiration of the term granted hereby, and at the same rental, without any deduction or concession, and upon the above terms, conditions and covenants, unless either party on or before the first day of July next ensuing after the commencement of any term granted hereby, shall give notice to the other by U.S. registered mail addressed, if to the Tenant, at the premises, or, if by the Tenant, to the Landlord at 119 Walker Street, New York City, of an intention to surrender or have possession of the premises as the case may be, on the first day of the following October.

"This clause shall be and continue operative likewise with respect to any renewals, extension or extensions hereof, that this agreement shall be binding on the heirs, executors, administrators and assigns of both parties."

It appears to me that much learning and time have been unnecessarily devoted to this controversy which admits of exceedingly simple solution by following ordinary rules of construction. Read literally, this clause establishes an automatic renewal of the lease on October 1, 1913, "for the further term of one year" unless the tenant shall have notified the landlord on July 1, 1912, of an intention to surrender the premises on October 1, 1912. From the lease itself — which is entirely in print except as to the description of the premises, the length of the term and the amount of rental — it is evident that this lease was prepared for a yearly hiring, and was, under the circumstances of this case, accidentally used to grant a term of a year and four months. The conclusion cannot be escaped that the notice of intention to surrender contemplated was only to be served on the first of July succeeding the first of October on which the term demised ended. The renewal term is spoken of not as "a term of one year" but " the further term of one year." At the end of the clause under consideration is the additionally significant provision that "this clause shall continue operative with respect to any renewal hereof," and, as these renewals are in the same clause required to be of one year each, it is quite apparent that the days which the parties had in mind were the first of July immediately preceding the termination of the term and the October first of such termination. Still further confirming this construction is the seventeenth clause that " Three months prior to the expiration of the term hereby granted, applicants shall be admitted at reasonable hours of the day to view the premises until rented;" thus identifying the July first which the parties had in mind as the date when notice of intention to surrender should be given, as the July first immediately preceding October first which marked the termination of the term. It is, of course, unfortunate that a form prepared for a yearly letting should have been used for a letting covering a demised term of sixteen months, but there can be no doubt that the parties thoroughly understood the lease to mean that which common sense compels us to interpret it as meaning.

It is useless to discuss questions submitted to one jury or the reason why they were so submitted, as it is apparent that the issue raised on this appeal, and admitted to be the only issue to be decided, is one of law upon which a verdict in favor of plaintiff should have been directed.

Judgment affirmed, with costs to respondent.

LEHMAN and PAGE, JJ., concur.

Judgment affirmed, with costs to respondent.