Madison Stores v. Enkay Sales Corp.

Philip H. Weekes for landlord Alexander Stone for tenant. Samuel Schachter for undertenant. premises become vacant or deserted, Landlord may give Tenant ten days' notice of intention to end the term of this lease and thereupon, at the expiration of the said ten days (if said default continues to exist) the term under this lease shall expire as fully and completely as if that day were the day herein definitely fixed for the expiration of the term, and Tenant will then quit and surrender the demised premises to Landlord but Tenant shall remain liable as hereinafter provided. (2). If the notice provided for in (1) hereof shall have been given, and the term shall expire as aforesaid; or * * *; then and in any of such events Landlord may without notice, re-enter the demised premises either by force or otherwise, and dispossess Tenant by summary proceedings or otherwise". On January 14, 1955, the landlord served the following notice upon the tenant:

DEAR SIRS:

We have received the letter of your attorneys, Messrs. Becker, Ross & Stone, dated January 7, 1955, which states that the signs objected to in our letter to you dated December 31, 1954, have been removed, which our inspection of the premises reveals to have been the fact.

However, it has come to our attention that today new signs have been placed in the place of the old signs on the windows and door of the above store premises.

We accordingly again notify you that such action on your part or on the part of your undertenant constitutes a breach of the lease dated March 25, 1951, between Marstan Realty Corporation, as Landlord, whose successor in interest we are, and yourself as tenant with respect to the above store premises, and a default thereunder as used in Article 23 of said lease.

We hereby notify you of our intention to end the term of said lease, and that if said default continues to exist at the expiration of ten days from the date hereof, the term of said lease will expire as fully and completely as if that day were the day thereon definitely fixed for the expiration of the term, and that we, as Landlord, intend to exercise all of our rights in the circumstances.

The basis for invoking the alleged conditional limitation as set forth in paragraph "8" of the petition is that "signs have Devonshire Associates v. Garrett (190 Misc. 820); Norman S. Riesenfeld, Inc., v. R-W Realty Co. (223 App. Div. 140); Ogden v. Hamer (268 App. Div. 751), and 6th Ave. & 24th St. Corp. v. Lyon (193 Misc. 186, affd. 275 App. Div. 651). Moreover, in addition to the foregoing determinations which require a dismissal of the petition herein, the court has grave doubts that paragraph 23 of the lease and the notice served thereunder by the landlord result in a termination of the lease based upon a conditional limitation. (See Norman S. Riesenfeld, Inc., v. R-W Realty Co., supra, and 6th Ave. & 24th St. Corp. v. Lyon, supra). The petition is dismissed on the merits.