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able excuse.38 Occasional lapses will not suffice to constitute an eviction. 39

It will have been noted that the statute makes wilful and intentional interference with “the quiet enjoyment of the leased premises by such occupant a misdemeanor. Such interference, it may in passing be stated, is likewise ground for an action for damages. 40

To avoid the possibility of confusion in the reader's mind, it may be well to note further that no eviction can exist where a tenant has never been in possession of premises. Where the landlord has failed to put the tenant in possession of part of leased premises, the tenant may elect to refuse possession of the remaining part and recover damages, or, at his option, he may accept possession of a part and have his rent apportioned, or pay his rent and bring an action for damages, or, if a summary dispossess proceeding for non-payment is brought, he may advance the landlord's act by way of defense and have his rent apportioned or damages awarded.41

38 Goldflam v. Opp (Supreme Court, Special Term, Lydon, J.), N. Y. Law Journal, February 1, 1921, pp. 1497–8.

39 Harper v. McMahon (Supreme Court, Wisconsin), 167 N. W. 431; Kiddie Co. v. Paneth (Mun. Ct., 3d Dist., Panken, J.), 187 N. Y. Supp. 242.

40 Laveites v. Gottlieb (Supreme Court, Special Term, Kings County, Cropsey, J.), 115 Misc. 218, 187 N. Y. Supp 452.

41 Forshaw v. Hathaway (App. Term, 2d Dept.), 112 Misc. 112, 182 N. Y. Supp. 646; Harperley Hall Co. v. Joseph, 187 N. Y. Supp. 120.

CHAPTER XX

Miscellaneous

NOTICES TO TERMINATE LEASES

Leases often provide that the landlord may terminate the term in the event he sells the property by giving a notice of specified duration. It has been held that such notice may be given upon the execution of a bona fide contract to sell the

a property; that it is not necessary to await the actual passing of title. 1

Where the lease provided that three days' notice of such termination should be given, it has been held that the giving of twenty-one days' notice did not prejudice the tenant and was sufficient to comply with the terms of the lease providing for a cancellation. Nor need such notice expire at the end of a month or other rental period.3

But the lease must in such cases specifically provide that the landlord, by giving such notice, may “terminate the lease.” Such a provision is what is called a "conditional limitation" of the term of the lease. It provides for a contingency under which the term of the lease may be limited or shortened. If the lease merely provides that should the premises be sold, the tenant agrees to vacate on receiving a certain notice, no such “conditional limitation" exists, but merely a so-called "condition.” If under such a lease the

1 Hyman v. Federal Doll Mfg. Co. (App. Term, 1st Dept.), 185 N. Y. Supp. 678, and cases cited.

2 Balducci v. Rakov (App. Div., 3d Dept.), 185 N. Y. Supp. 721.

3 Rosenbaum v. Parnes (App. Term, 1st Dept.), 111 M 374, 181 N. Y. Supp. 452.

tenant fails to vacate on receiving the stated notice, all the landlord may do is to bring an action of ejectment or recover damages. He may not bring summary proceedings against the tenant as a holdover,” for the lease has not been ended.

Such a notice of termination as is above referred to must be given by the landlord or owner at the time he is about to sell the premises. It will not suffice if given by the purchaser after he has acquired title; nor, of course, will a notice of this character have any force or effect if given by the prospective purchaser before he acquires title, where the lease provides that the "landlord" or "owner" is the party to give the notice, in event of sale. 5

A covenant giving a landlord a right to terminate a lease on notice has been held to be "personal” with the landlord who makes it, and not to be such a covenant as "runs with the land” and is available to each succeeding owner.

The lease may, however, of course specifically provide that the benefits of such a covenant shall be available to the landlord and to his heirs, successors and assigns, and in such case the succeeding owners have all the rights of the original landlord.

The right to terminate the lease by agreement is, of course, subject and subservient to provisions of the “Housing Laws.” The shortening of the term of the tenant by agreement of the parties confers no greater rights upon the landlord than an original expiration of a lease. Possession can only be secured

• Weinman v. Trainor (App. Term, 1st Dept.), 114 Misc. 403, 186 N. Y. Supp. 587.

5 See Payne v. Brathwaite (App. Term, 1st Dept.), 113 Misc. 517, 185 N. Y. Supp. 107; Bannerman v. Hughes (App. Term, 1st Dept.), 188 N. Y. Supp. 410; Broadway-John St. Corp. v. Huyler's (App. Term, 1st Dept.), 115 Misc. 621, 189 N. Y. Supp. 223, and cases cited.

6 507 Madison Ave. Realty Co., Inc. v. Martin (Mun. Ct., Genung, J.), 114 Misc. 315, 187 N. Y. Supp. 318, and cases cited.

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of dwelling property under certain conditions heretofore considered.?

RENEWALS OF LEASES

Questions of various sorts frequently arise respecting renewal covenants in leases, and it may be helpful to refer here to some principles governing such renewal clauses enunciated in recent decisions.

The question has arisen under a lease giving the tenant a right of renewal, whether the first exercise of such right exhausts it, or whether each renewal lease incorporates within itself the renewal provision of the original lease, so that in effect the tenant acquires a right perpetually to renew. It has been held that the renewal provisions of the original lease are not incorporated in the new lease created by the tenant's exercise of the right of renewal, unless that intention is clearly expressed in the original agreement of the parties. 8

Where the original lease provided that it might be extended by notice “with the same conditions and privileges as stated in this lease,” it has been held to be a question of fact for a jury to determine whether the parties intended a renewal option in the original lease also to be extended."

An interesting case is that in which premises were leased jointly to two tenants under one lease, containing an option of renewal. It was held that the exercise of the option required their united action, and that the act of one alone would not suffice to effect a renewal. 10

A lease for one year and privilege of one year more” has ? See supra, Title II, page 57 et seq. 8 Jones

Cocomitros (Jefferson Co. Court), 114 Misc. 447, 186 N. Y. Supp. 683, and cases cited.

Sanitary Fireproofing Co. v. Finkel Co. (App. Div., 1st Dept.), 188 N. Y. Supp. 42.

10 Foster v. Stewart (App. Div., 4th Dept.), 188 N. Y. Supp. 151.

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been held for "all practical purposes" to be, "at the tenant's option, a two-year lease."11

Provisions that the tenant's notice of exercise of the right of renewal shall be given in a certain way are held to be provisions for the landlord's benefit, exact compliance with which may be orally waived by the landlord or his authorized

agent. 12

VENUE

The law enacted April 8, 1921,13 prescribed that “an action against the occupant of premises for rent and for the rental value of the use and occupation thereof, or to recover the possession of real property, must be brought in a district where the premises or property is located.” This refers to actions in the New York City Municipal Court. Prior to the passage of this law, it was alleged that landlords often brought their actions in distant and outlying districts of the city, so as to exhaust and harass the tenant and cause him to yield to the landlord's demands rather than endure such tactics. To meet this alleged practice, the Board of Municipal Court Justices passed a rule, 14 intended to accomplish what the law now prescribes. This rule was, however, held to be in contravention of the statute and void, 15 and accordingly the present statute was enacted. It should be noted that so far as the State is concerned, outside of New York

11 Meyrowitz v. Smith (App. Term, 1st Dept.), 185 N. Y. Supp. 91. See also, Briggs v. Bloomingdale Cemetery Ass'n (Supreme Ct., Erie Co.), 113 Misc. 685, 185 N. Y. Supp. 348.

19 Northman v. Hass (App. Term, 1st Dept.), 114 Misc. 384, 186 N. Y. Supp. 609.

13 Laws of 1921, Chap. 165, amending New York City Municipal Court Code, $ 17.

14 Rule No. 35.

16 People ex rel. Nassoit v. Young (Jan. 1921), 195 App. Div. 513, 186 N. Y. Supp. 334.

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