Trustees & Associates of the Brooklyn Benevolent Society v. Connell

Stapleton, J.: A lessor sued his lessee in an action to recover real property. The term of the lease had expired. The lessor had the' right, under the lease, to elect, at its expiration, whether it would renew or take the building erected on the demised premises at a price to be fixed by arbitration. It made no election. The lessee continued in possession of the premises after the expiration of the term. The lessor brought the action to recover possession, alleging a violation of a covenant against subletting without the written consent of the lessor, and a violation of a covenant restricting the use to which the building could be put. There is no claim that any covenant was violated during the term of the lease. The acts complained of were committed, if at all, while the lessee was retaining possession awaiting the election of the lessor. The lessee counterclaimed for the value of the building, but made no counterclaim for judgment requiring the lessor to make its election. The counterclaim was dismissed, we think properly; a judgment awarding possession of the property to the lessor was entered, we think erroneously. (Zorkowski v. Astor, 156 N. Y. 393; Cagger v. Lansing, 64 id. 417; Doyle v. Hamilton Fish Corporation, 144 App. Div. 131. See, also, Doyle v. Hamilton Fish Corporation, 216 N. Y. 627; Van Beuren [823] v. Wotherspoon, 164 id. 368; Conger v. Ensler, 85 App. Div. 564.) The judgment should be reversed and a new trial granted, costs to abide the event. Jenks, P. J., Thomas, Mills and Rich, JJ., concurred. Judgment reversed and new trial granted, costs to abide the event.