Bruder v. Geisler

Scott, J. The condition as to cancellation in the lease herein involved does not- differ in any essential particular from that considered in Miller v. Levi, 44 N. Y. 489, which was determined to constitute a conditional limitation of the term permitting the maintenance of a summary proceeding for holding over. There is no force in the contention that the case is different because in the lease now under consideration the language is that in the contingency provided for, [371] the tenant “ agrees to cancel said lease.” This is equivalent to saying that the tenant “ agrees that the lease shall be thereby cancelled,” and does not contemplate any act by the tenant to complete the cancellation. The subtenant’s rights are measured by those of his immediate landlord, the original tenant, and the cancellation of the lease, by its own terms, as to one cancels it as to both. Bove v. Coppola, 45 Misc. Rep. 636; 91 N. Y. Supp. 8. Final order reversed and new trial granted, with costs to appellant to abide the event. Tbuax and Dowling, JJ., concur. . Final order reversed and new trial granted, with' costs to appellant to abide event.