Sarner v. Kantor

Proskauer, J. Defendant lessor moves to dismiss the lessee’s complaint for insufficiency in law. The lease provided: “Fourth. That the tenant shall not assign or sublet this agreement, or under-let or underlease the premises * * * without the landlord’s written consent first had and obtained * * *. Nothing herein contained shall permit the landlord to unreasonably withhold his consent to any sublease.” Plaintiff alleges unreasonable refusal to consent to a sublease and demands damages and the return of the deposit under the lease. Plaintiff cannot recover unless this 4th clause is a covenant by defendant not unreasonably to withhold his consent to a sublease. The purpose of the provision is to protect the lessee against liability for damages or risk of forfeiture if consent of the lessor is improperly withheld. 1 Tiffany Landl. & Ten. § 152, p. 933; 2 Underhill Landl, & Ten. § 632, p. 1063. Nowhere does the lessor expressly covenant not to withhold his consent unreasonably. The only covenant is by plaintiff not to sublet, and it is plaintiff’s own covenant that is qualified by the condition that the lessor shall not unreasonably withhold his consent. The cases of Sear v. House Prop. & Inn. Soc., L. R. (1880-81) 16 Ch. Div. 387, and Treloar v. Bigge, L. R. (1873-74) 9 Exch. 151, are controlling. Plaintiff urges that this construction imposes upon the lessee the risk of forfeiture if he subleased and points out the practical difficulty of finding a sublessee under such circumstances. Young v. Ashley Cardens Properties, Ltd., L. R. (1903) 2 Ch. Div. 112, shows the remedy. There plaintiff sought a declaratory judgment that defendant had no right to withhold consent. Cozens-Hardy, L. J., writes: “ I cannot imagine a more judicious or beneficial exercise of the jurisdiction to make a declaratory order than that which has been adopted * * * in this case.” Under section 473 of the Civil Practice Act, plaintiff may, if the facts warrant, secure a similar declaration in the instant case. Judgment for defendant. Ordered accordingly; judgment accordingly.