Stender v. Kerreos

Blair, C. J. In my opinion the judgment of the circuit court should be affirmed, for the reason that the notice given to the lessees was sufficient to terminate the lease. I do not think that the sufficiency of the notice in question should be determined solely, “upon this point, by what appears in the lease and in the notice and not by evidence aliunde.” The lease does not purport to prescribe the exact terms of the notice, and any form of language which would express the reason for the notice would be sufficient. The object of the notice was not only to express to the lessees the intention of the lessor to terminate the lease and the ground therefor, but also to convey to the minds of the lessees such intention and the basis therefor. Any form of notice which should apprise the lessees that the ground of the notice was the wish to rebuild would be sufficient. In determining the meaning of the notice, therefore, reference may properly he had to the existing facts known to both parties at the time the notice was given. The testimony showed that defendant Lavagnino’s subtenancy was with the consent of Mrs. [501] Cady, that the complainant knew of the leasehold rights of the defendants when he purchased the property of Mrs. Cady, and had personally received and receipted for the rent up to August 1, 1907. The notice required the defendants to surrender possession “on or before the first day of August, A. D. 1907, for the reason that I intend to terminate your tenancy and repossess the whole of such premises on the date above' mentioned.” On the 1st day of August, 1907, the defendants’ fixed term and all further rights in the premises terminated, unless by that day they exercised their privilege to fix a further term and complainant had failed 60 days prior to that time to cut off their right to fix such further term by giving them notice of termination of that right. The notice stated the reason (and the only reason) why it was given, as follows: “ This notice is given in accordance with a provision contained in a certain lease,” etc. It is to be observed that the notice is given specifically in accordance with a provision not generally in accordance with the provisions of the lease. The only provision providing for the giving of a notice is the provision that: “ On and after three years from said August 1, 1904, the said party of the first part shall have the privilege of entering and occupying said premises and terminating said lease, in case she wishes to rebuild upon said premises, upon giving said parties of the second part sixty (60) days’ notice in writing of such intention; but, during the three years comprising the term of this lease, the said party of the first part to have no such right to terminate said lease.” The provision for notice was a part of the clause giving to the lessees the privilege of a renewal and was a limitation of that privilege. The notice given confirmed the right of the lessees to occupy the premises till the end of the original term and manifestly applied solely to their right to a renewal. The notice conformed to the provision therefor in the length of time given, and, since the lessees could not fail to understand that the provision of the lease [502] referred to in the notice was the one explicitly providing for notice, the notice should be construed as though the reference to the provision made it a part of the notice. This conclusion appears to me to be justified by a reasonable interpretation of the written instruments, in the light of the surrounding facts, and is also sustained by authority. A contrary conclusion was reached in Matter of Coatsworth, 37 App. Div. (N. Y.) 295, cited in the brief for defendants as setting forth “the logic and the law of our contention in this particular.” The lease contained the following language: “And the said parties of the first part further covenant and agree to and with the party of the second part, his executors, administrators and assigns, that in case they do not give the party of the second part, his executors, administrators or assigns, at least six months’ notice in writing before the 1st day of April, 1862, of their election to take possession of said demised premises at the expiration of this lease and to pay for said buildings, vaults and sidewalks at such appraised value, that then and in that event they will renew and continue this present demise and lease, and such omission to give said notice shall be deemed and taken to be a renewal and continuance of this demise and lease for five years from the said first day of April, 1862, upon the same terms and conditions hereinbefore expressed, except that the rent for said renewed and continued term shall be $700 per annum, payable in the same way as the last five years’ rents above provided for. And they also covenant and agree as aforesaid that so often as they shall fail to give said six months’ notice before the termination of such renewed term, they will renew the said demise and lease, and such failure shall be deemed a renewal thereof for five years from the termination thereof, on the same terms and conditions as the said first renewal and continuance.” The notice contained the following: “Sirs: You will take notice that we, as owners of premises, * * * hereby elect to take possession of the said demised premises pursuant to the provisions of [503] said lease, on the 1st day of April, 1897, and hereby notify you that said lease shall terminate on that day.” The holding of the appellate division was reversed by the court of appeals; the court saying, in part: “ The only defect claimed in the notice is that it does not contain an express promise to pay for the buildings at their appraised value. The learned appellate division appears to have been of the opinion that the lease prescribed the form of the notice and that the promise to pay was a part thereof. We incline to the view that the wording of the lease does not justify such a conclusion. By it the parties agree that, in case the landlords do not give six months’ notice in writing of their election to take possession of the demised premises at the expiration of the lease and pay for the buildings, vaults, and sidewalks at the appraised value;, they will renew and continue this present demise and lease, etc. This does not purport to prescribe the form of the notice in hsec verba, but only gives the substance. Upon referring to the notice it will be seen that the owners elect to take possession of the premises, ‘pursuant to the provisions of said lease,’ so that if, under the provisions of the lease, they are required to pay for the buildings, they take possession under the promise to pay therefor. It appears to us that this is a substantial compliance with the terms of the lease and answers every requirement of the notice.” Matter of Coatsworth, 160 N. Y. 114. If it should turn out that the notice was not given in good faith, with an actual intention to rebuild, the rights of defendants will be fully protected under this interpretation of the notice. The judgment is affirmed. Montgomery, Hooker, Moore, and McAlvay, JJ., concurred with Blair, C. J.