Schulte Leasing Corp. v. L. & C. Mayers Co.

O'Malley, J. The essential facts necessary to a decision in this submission of controversy are sufficiently set forth in the opinion of Mr. Justice Townley, save that it should be noted that the lease was terminated because of the default of the defendants in payment of rent by a final order in summary proceedings. It seems to be conceded that, were the second clause of the first sentence in the paragraph of the lease under consideration contained in a separate paragraph, plaintiff would be entitled to judgment. It is difficult to see why, merely because it is embraced within the same paragraph as the requirement for the three days’ notice, it must be deemed to be bound up with such requirement, though set off from that portion of the paragraph by a semi-colon. In construing this lease as with any other contract, the intent of the parties must be considered. The draftsman of this particular paragraph certainly intended that the obligation on the part of the tenant to make good the amount of the rent reserved, should [404] survive any termination of privity of estate by the tenant’s wrongful acts. The three days’ notice in writing it seems to me has no relation to the particular clause to be interpreted. That notice was a contractual method of accelerating the end of the term fixed in the lease. It was to be exercised in the landlord’s option for any breach of the terms of the lease, or upon the happening of certain specified contingencies. The second clause in the first sentence relates to the acceleration of the term by operation of law. Under the first clause of such sentence, the lease would terminate three days after the giving of the written notice and ejectment or hold-over proceedings would lie. Under the second clause of the first sentence of the paragraph, the lease would not terminate until the entry of the final order or some other adjudication of the court. There was no reason under the latter circumstances for the giving of a formal notice in writing. The proceedings themselves would be sufficient notice. It seems to me, therefore, that the requirement with respect to the three days’ notice in writing did not apply to a situation such as here presented, where the landlord terminated the lease with respect to privity of estate by summary proceedings for non-payment of rent. Judgment, therefore, should be directed in favor of the plaintiff landlord for the amount of the monthly deficiency sued for with interest, without costs. Finch, P. J., and Sherman, J., concur; Merrell and Townley, JJ., dissent and vote to direct judgment for defendants.