Grosscup v. Spiller

Bijur, J. The real question involved in this appeal, which is taken from a judgment rendered in favor of the landlord in summary proceedings, is whether the clause in the lease litigated constitutes a condition or a limitation. The language of the lease is as follows: “ This lease is granted upon the express condition, however, that in case said landlord, his agents or assigns, at any time should deem occupants objectionable or improper said landlord, his agents or assigns, shall have full license and authority to re-enter and have full possession of said premises, either with or without legal proceedings, on giving five days’ previous notice of intention so to do and tendering payment of the rent paid on account of the unexpired term; and upon the expiration of said notice and tender of payment made as aforesaid, said landlord, his agents or assigns, shall be entitled to the immediate possession thereof; and in consideration of the above letting the party of the second part consents that the landlord, his agents or assigns, shall not be liable to prosecution or damages for so resuming possession of said premises” and “Fourth: That in case of default in any of the covenants the landlord may resume possession of the premises and relet the same.” If the lease provided that upon giving five days’ notice the lease should terminate or the term expire, as it did in Miller v. Levi, 44 N. Y. 489, it would be plain that the clause constituted a limitation and that summary proceedings were warranted. This lease, however, authorizes the landlord merely to re-enter. That he may re-enter after five days’ notice, rather than on a bare condition broken, does not- alter the character of the provision. Final order reversed and new trial granted, with costs to the appellant to abide the event. Guy, J., concurs.