Condit v. Manischewitz

Per Curiam. Plaintiff succeeded to the rights of Mabel E. Sherman, who leased to the defendant certain premises at 600-602 West One Hundred and Thirty-first street for a term ending March 31, 1926. The lease provided that the tenant should have an option to renew the lease for five years from April 1, 1926, upon giving written notice, of intention to exercise the option six months prior to April 1, 1926. It contained also a covenant by the tenant not to assign without the landlord’s consent and providing that in the event of an assignment with the landlord’s consent the tenant would deposit $5,000 as additional [367] security and that the assignee should assume the performance of the lease. On July 25, 1917, the defendant leased the entire premises to Morris Workin and Isaac Workin for the entire term of the lease, including the renewal period, and the defendant covenanted in that lease “ to exercise his option for the renewal of his original lease with his landlord, pursuant to the terms of his lease.” In October, 1917, the Workins sublet the premises for the entire term to the W. G. Corporation. The two last-mentioned instruments were recorded on March 4, 1921. On October 11, 1922, the defendant served a written notice exercising his option to renew the lease. Since October 21, 1925, the plaintiff has continuously received and accepted rent from the defendant with full knowledge of all these facts. Plaintiff asks judgment awarding her possession of the property at the end of the initial term. The sublease made by the defendant was in legal effect an assignment made in violation of the terms of the lease. (Gillette Bros. v. Aristocrat Restaurant, 239 N. Y. 87, 90.) Plaintiff would have been justified in demanding possession of the premises by reason of this breach. But she clearly waived this right and adopted and ratified the assignments by the acceptance of rent with full knowledge (2 Williston Cont. 1327, § 687; Leibowitz v. Bickford’s Lunch, System, 241 N. Y. 489, 499.) This ratification is not impaired by the provision in the lease that the failure of the landlord to insist upon strict performance “ shall not be construed as a waiver or relinquishment for the future of any such covenant, condition or option.” That provision relates only to the right of the landlord to demand future performance of any covenant of the tenant’s despite any waiver of past performance thereof. Plaintiff contends, however, that inasmuch as the lease was assigned, the right of renewal rested in the assignee and not in the defendant and that the defendant’s notice of exercise of the option was, therefore, inoperative. All the authorities relied on by the plaintiff involve controversy between the lessee and his assignor as to the right to the renewed term. Here the lessee exercised the option as agent for his assignee pursuant to his covenant so to do. It would be inequitable in the extreme to permit the plaintiff to avoid the consequences of her covenant to renew merely because the lessee omitted to state in his notice that he was acting for the assignee. The plaintiff has sustained no prejudice by reason of this omission or by reason of the failure of the defendant and his assignees to record the so-called subleases immediately. We conclude, therefore, that the option to renew the lease was [368] validly exercised for the benefit of the defendant’s assignee. Neither’ that assignee nor his assignee, however, is a party to this submission. There is nothing in the submission which advises the court whether the assignee is claiming the renewed term. In no view of the case can the defendant be entitled to it, and if any real controversy exists, it is not between this plaintiff and the defendant, but between the plaintiff and those claiming under the defendant. For these reasons we have reached the conclusion that the submission should be dismissed, without costs. Present — Dowling, P. J., Mekrell, McAvot, Martin and Proskauer, JJ.; Mebrell, J., dissents.