Beach v. . Nixon

Johnson, J. The appellant’s case is subject to a fatal objection in this, that- the provision in the lease upon which he has proceeded creates a condition merely, and not a conditional limitation. The lessor upon breach is not to be in immediately of his former estate, but at his option the *37 hiring and the relation of landlord and tenant are to cease, and are of course to continue until he shall otherwise elect. “ Where an estate is so expressly limited by the words of its creation that it cannot endure for any longer time than until the contingency happens upon which the estate is to fail, this is a limitation. On the other hand, when an estate is expressly granted upon condition in deed, the law permits it to endure beyond the time of the contingency happening, unless the grantor takes advantage of the breach of condition by making entry, &c.” (Crabb's Law of Real Prop., § 2135.) This is clearly the rule as to estates greater than estates for years; and as to the latter if the rule in any case be different, yet where the condition is so framed that the estate is void only at the election of the lessor, the same rule applies, (Parmelee v. Oswego & Syr. R. R. Co., 2 Seld., 80.) If this be so, then Oakley v. Schoonmaker (15 Wend., 226) is in point. That case holds that by the “ expiration of the term” in 2 R. S., 513, § 28, sub. 1, a forfeiture on breach of condition is not meant, and the determination of that case is plainly right. (See also Benjamin v. Benjamin, 1 Seld., 383.) The only remaining point is whether the covenant contained at the end of the lease either confers jurisdiction to proceed under the statute in respect to summary proceedings, or precludes the lessee from .objecting for the want of jurisdiction. The law and not the consent of parties confers jurisdiction, and that rule could have 'no practical force, if consent given in whatever form could preclude inquiry as to the lawfulness of the jurisdiction. The judgment of the supreme court should be affirmed, , with costs. Denio, J., did not hear the argument. All the other judges concurring, Judgment affirmed.