(111 Misc. Rep. 600)

HARRIS v. GOLDBERG et al.

(Supreme Court, Appellate Term, First Department. May 13, 1920.)

1. Evidence 467-Parol consent to sublet held not inadmissible as varying written lease providing for written consent.

Where a lease prohibited assignment or underletting without landlord's consent, and the landlord instituted summary proceedings for breach of such provision, evidence that the landlord orally consented to a sublease of the premises was erroneously excluded, the evidence not varying the terms of the written instrument, but was competent to show a waiver of the written provision that the consent should be in writing, based upon a good consideration, consisting of the making of a second lease for an adjoining building.

2. Landlord and tenant 104-Provisions for re-entry in case of breach of covenant held not to provide for "expiration" of lease.

A lease providing that the tenant shall not sublet, under a penalty of damages and forfeiture, and providing that, in case of default, the landlord may re-enter, held merely to provide for an action in ejectment, and forfeiture and re-entry for breach of covenant, and not to mean that upon such re-entry the lease expired; "expiration" contemplating termination of the lease by lapse of time.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Expiration.]

Appeal from Municipal Court, Borough of Manhattan, Second District..

Summary proceedings by Moses Harris, landlord, against Isidor Goldberg, tenant, and Abraham Levine, undertenant. From a final order awarding to the landlord possession of the premises, the tenant appeals. Reversed, and petition dismissed.

Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ. Gans, Davis & O'Neill, of New York City (Joseph Gans and C. Arthur Jensen, both of New York City, of counsel), for appellant. Isaac Hyman, of New York City, for respondent.

GUY, J. The petition herein alleges: That the landlord leased. to the tenant a basement store for three years, the term to end December 31, 1921. That the lease contained the following paragraph:

"4. That the tenant shall not assign this agreement, or underlet or underlease the premises, or any part thereof, or make any alterations on the premises, without the landlord's consent in writing, or occupy, or permit or suffer the same to be occupied, for any business or purpose deemed disreputable or extrahazardous on account of fire, under the penalty of damages and forfeiture."

That prior to September 15, 1919, the tenant, without the landlord's consent in writing, underlet the premises to one Levine. That on the 16th day of September, 1919, the landlord gave notice in writing to the tenant that the landlord elected to terminate the tenancy by reason of the said violation of the terms and covenants of the lease, and demanded possession of the premises on or before September 30, 1919, and that in default thereof he would commence summary proceedings to remove the tenant and undertenant. The petition further

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

states that, prior to the verification of the petition, the landlord elected to terminate the tenancy by reason of said violation, that the tenant's term has "expired," and that he holds over without permission of the landlord.

The tenant appeared specially and moved to dismiss on the following grounds: First, that the court had no jurisdiction; second, that the petition fails to allege that notice to terminate the tenancy has been given to the undertenant; third, that there is no allegation that the undertenant is in possession of the premises. The motion was denied, and leave given to the tenant to answer. The tenant's answer admits the making of the lease and his entry into possession, and defends on the ground that the landlord consented to the subletting, and that, relying on such consent, the tenant sublet the premises.

[1] The landlord and the tenant both testified that on July 2, 1919, they entered into a second lease for an adjoining building, and the tenant testified that prior to the making and signing of said second lease the landlord orally consented to his renting the premises herein. to an undertenant; but this testimony was stricken out, on the ground that it tended to vary the terms of a written agreement. This ruling was erroneous, as the evidence was not intended to vary the terms of the written agreement, but to show waiver of the provision that the consent should be in writing; such waiver being based on a good consideration, the waiver being one of the inducing causes for the tenant taking a lease of the adjoining building from the same. landlord.

"The rule forbidding the admission of parol or extrinsic evidence to alter, vary, or contradict a written instrument does not apply, so as to prohibit the establishment by parol of an agreement between the parties to a writing, entered into subsequent to the time when the written instrument was executed, notwithstanding such arrangement may have the effect of adding to, changing, modifying, or even abrogating the contract of the parties, as evidenced by the writing; for the parol evidence does not in any way deny that the original agreement of the parties was that which the writing purports to express, but merely goes to show that the parties have exercised their right to change or abrogate the same, or to make a new and independent contract." 17 Cyc. pp. 734, 735.

See, also, Dierig v. Callahan, 35 Misc. Rep. 30, 70 N. Y. Supp. 210; 3 McAdam on L. & T. (3d Ed.) p. 181; Steen v. Niagara Fire Ins. Co., 89 N. Y. 315, 42 Am. Rep. 297.

"If the lessor has misled the lessee by holding out false hopes to him, in consequence of which the latter has changed his position to his prejudice, such acts may estop the lessor from claiming forfeiture." McAdam on L. & T. (3d Ed.) p. 347.

[2] Paragraph 4 of the lease confers upon the landlord no right to give notice of election to terminate the lease, or that upon subletting without the landlord's consent in writing the lease shall terminate, but merely provides that the tenant shall not sublet under a penalty of damages and forfeiture. Nor does the other clause of the lease, which provides that, if default is made in any of the covenants, it shall be lawful for the landlord to re-enter the premises, mean that the lease shall terminate upon such re-entry. Both clauses merely

provide for action by ejectment, and for forfeiture of the lease and reentry for breach of the covenants. Expiration of a lease means when it reaches its natural limit provided for in the lease, whether by the expiration of the term for which the premises are hired, or by the happening of some event which by its terms the lease provides shall terminate the lease. On such expiration of the lease, the tenant could be dispossessed by summary proceedings for holding over after the expiration of the term. "The statutory term 'expiration' does not refer to a forfeiture by breach of condition, but to the expiration of the term by lapse of time" (Matter of Guaranty Building Co., 52 App. Div. 140, 142, 143, 64 N. Y. Supp. 1056, 1058), or by the happening of an event as provided in the lease. See, also, Miller v. Levi, 44 N. Y. 491.

In Martin v. Crossley, 46 Misc. Rep. 254, 91 N. Y. Supp. 712, the lease provided that the landlord might terminate and end the lease "for any breach by the tenant of its terms, by giving a five days' notice, whereupon this lease and said terms shall cease and

* * *

end." The court, in construing the lease, said:

"The term granted by the lease was by the terms of the instrument made liable to curtailment upon a certain contingency, to wit, the giving of notice by the landlord, and that when that notice had been given, and the term thereby curtailed, it had 'expired,' so as to justify a proceeding for dispossession for holding over."

In said case the expiring of the lease did not result from the forfeiture thereof created by the broken covenant, but upon the express limitation provided in the lease. In the instant case the lease contains no such provision. The landlord had the option, either to hold defendant in damages for his breach, or by ejectment to have the forfeiture declared. There is no limit set in the lease for the expiration thereof, except the date for the expiration of the termDecember 31, 1921. See Beach v. Nixon, 9-N. Y. 35; Matter of Guaranty Building Co., supra; Grosscup v. Spiller, 68 Misc. Rep. 499, 124 N. Y. Supp. 787.

"Where the lease provides that the estate shall cease upon the happening of the event, at the option of the landlord, the lease is not at an end until the landlord has exercised his option by enforcing a forfeiture; and this consututes, not an expiration of the lease, but a termination," citing Kramer v. Amberg, 15 Daly, 205. "There is but one way in which in law she [the landlord] can manifest such election, and that is by actual re-entry." Janes v. Paddell, 67 Misc. Rep. 420, 122 N. Y. Supp. 760.

See, also, St. Stephens Church v. Bastine, 75 Misc. Rep. 470, 133 N. Y. Supp. 442.

The final order appealed from must be reversed, with $30 costs, and a final order entered dismissing the petition on the merits in favor of the tenant. All concur.

(111 Misc. Rep. 632)

(182 N.Y.S.)

COCHRAN v. ANDERSON.

(Supreme Court, Appellate Term, First Department. May 25, 1920.) 1. Landlord and tenant 104-Subletting did not terminate tenancy, but gave right of re-entry.

Where a lease provided that the tenant should not assign or underlet the premises, or any part, without the landlord's consent, etc., and that in case of default the landlord might resume possession, breach of such covenant did not ipso facto terminate the tenancy, but merely gave the landlord a right of re-entry.

2. Landlord and tenant 296 (1)—Subletting does not entitle landlord to maintain summary proceedings.

Where a lease did not make breach of condition against subletting ipso facto terminate the tenancy, but merely gave the landlord the right of re-entry, which option he might exercise or not, a breach did not entitle the landlord to maintain summary proceedings, under Code Civ. Proc. 2231, authorizing dispossession of tenant who holds over after expiration of his term.

3. Landlord and tenant 297 (2)-Notice after tenant's breach of condition will not terminate tenancy and warrant summary proceedings.

Where lease provided that breach of conditions should give landlord right of re-entry, landlord cannot, on condition broken, terminate tenancy by mere notice, and maintain summary proceedings, but is relegated to his action of ejectment.

Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Summary proceeding by Ernestine A. Cochran, landlord, against Margaret A. Anderson, tenant. From a final order in favor of the landlord, the tenant appeals. Order reversed, and petition dismissed. Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ.

Guido J. Guidici, of New York City, for appellant.

Jeremiah Wood, of New York City, for respondent.

WAGNER, J. The proceeding was instituted under section 2231 of the Code of Civil Procedure, authorizing the dispossession of a tenant who holds over after the expiration of his term, and the only question involved is whether the term had expired, or merely been terminated by the act of the landlord in giving notice of his election to take possession of the demised premises. The tenant occupied the premises under a one-year lease commencing October 1, 1919, the provisions of which, pertinent to this controversy, were as follows:

*

*

*

"3. That the tenant shall not assign this agreement, or underlet the premises, or any part thereof, without the landlord's or agent's consent in writing, and that she will not use or permit to be used the said premises, nor any part thereof, for any purpose other than that of a private dwelling apartment for herself and family only."

"6. That in case of default in any of the covenants the landlord may resume possession of the premises, and relet the same for the remainder of the term at the best rent that she can obtain for account of the tenant, who shall make good any deficiency."

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

The petition sets forth as the grounds for seeking the aid of the statute, and the tenant admitted, that she sublet a part of the premises to persons other than members of her family and for hire, and that on October 3, 1919, there was personally delivered to her a notice from the landlord, specifying the violation of paragraph 3 of the lease, and notifying her that the landlord would take possession on the 9th instant. In other words, it was stipulated, without the taking of testimony to that effect, that there had been a violation on tenant's part of the terms of the lease; the only issue before the court being whether the tenant's breach of the condition terminated the lease, as constituting in substance a limitation, or whether it was a breach of condition relegating the landlord to her remedy of an action for ejectment to regain possession of its premises.

[1] The contention of the respondent, advanced in the court below, was that because of the tenant's violation of the covenant against subletting her term expired upon the giving of the notice by the landlord, and summary proceedings were properly maintainable. We have gained from a careful reading of the trial court's opinion, in which he granted a final order of dispossession to the landlord, the impression that the decision was not based so much upon a finding that the case presented in instance of conditional limitation, as that, because of the tediousness and expense attendant upon the remedy of ejectment, the tendency of the courts is to uphold and somewhat extend the right of summary proceeding, to the end that issues may be determined without delay. We think these observations of the learned trial justice are not supported by authority, and that the granting of the final order was error.

There is no provision in the lease that upon the giving of notice the lease should terminate. It expressly by its terms authorized but a right of re-entry. The breach of the condition did not under its phraseology ipso facto terminate the tenancy. Miller v. Levi, 44 N. Y. 489; Matter of Guaranty Building Co., 52 App. Div. 140, 64 N. Y. Supp. 1056: Cramer v. Amberg, 4 N. Y. Supp. 613; Beach v. Nixon, 9 N. Y. 35; Martin v. Crossley, 46 Misc. Rep. 254, 91 N. Y. Supp. 712.

[2] Here the landlord had the option to re-enter or to continue the term of the letting in case the tenant sublet the demised premises; it was purely an optional matter with her. She might or might not have taken advantage of it, and the exercise of her option could not be an expiration of the lease by its own limitation. It is only where the lease comes to an end upon the happening of a stipulated event, and is expressly then terminated, that the notice is effective, or, as recently said by Lehman, J.. in Waitt Construction Co. v. Loraine, 109 Misc. Rep. 527, 179 N. Y. Supp. 167:

"But such notice is effective only where the event has occurred which gives the right to the landlord to terminate the lease."

[3] There can be no doubt that the above-quoted provisions of the lease did not constitute a limitation; that, the tenant not being a holdover, the case did not come within the provision of the statute sanctioning summary proceedings. The landlord was therefore remit