
    Sarah J. Ocumpaugh, Appellant, v. Margaret Engel and John J. Engel, Respondents.
    Fourth Department,
    July 9, 1907.
    Municipal Court — equitable jurisdiction —landlord and tenant — right of renewal — waiver.
    The Municipal Court of the city of Rochester is without equitable jurisdiction, and cannot, in a proceeding to dispossess ■ a tenant, eliminate clauses in the’ lease. ' '
    When a lease requires a tenant to give written notice of an intention to renew on or before the day the lease expires, mere testimony that the. landlord’s agent, before the expiration of the lease, in answer to a verbal statement that the tenants would stay, said “all right,” does not establish a waiver of the written notice to renew. '
    Williams and Robson, JJ., dissented.
    
      ' Appeal by the plaintiff, Sarah J; Ocumpaugh, from a judgment. of the County Court of Monroe county in favor of the defendants, entered in the office of the clerk of said county on the 31st day of December, 1906, affirming a judgment of a justice of the Municipal' Court of the city of Rochester, dismissing the plaintiff’s petition in summary proceedings.
    The. proceeding was commenced in the Municipal Court of the city of Rochester on the 6th day of April, 1906, by the service of the precept-herein, issued upon the petition of the plaintiff and served upon the defendant tenants, Margaret Engél arid John J. Engel, personally. Said tenants filed, an answer in which it was alleged in substance that there was a nonjoinder of parties; that a condition precedent contained in the lease and which, required the giving of a written notice by the tenants of their intention to renew the lease before February 1, 1906, was included "in the lease by the ‘ misrepresentation and fraud of the landlord, and, therefore, was not', .binding upon the tenants; also, that there was ¿waiver, of such written notice of renewal on the part of f ile landlord,, assuming that' it was properly a part of such' lease. The' issues thus raised were tried'before the judge of the Municipal Court without, a jury,, and-a final order was-made dismissing -the complaint, upon which judgment was entered. . The- plaintiff , appealed to-the County Court of Monroe county from this order, which was in all respects, affirmed, arid fr.om -the judgment entered thereon -this appeal is taken. . '
    
      Frederick J. Smythe, for the appellant.
    
      Fugene Raines, for the respondents.
   McLennan, P. J.:

The record in this.'case is voluminous, as are the briefs of the ■respective, counsel, but really, when immaterial matter is eliminated, the issues are very plain and simple.

On the 9tli day of January, 1903, the plaintiff executed a lease to the defendants of certain premises owned by her in the city of Rochester, FT. Y., such lease to' commence on the 1st day of April, 1903, and continue until’the 31st day of March, 1906, being practically a lease of the premises for. three years upon a certain rental fixed thereby. It was also provided iir and by said lease, while cer~tain clauses to that effect were not in proper connection, that the parties of the second part should give the party of the- first part written notice of their intention to continue such lease or of their intention to abandon the same on or before the 1st day of February, 1906. lío such notice was given by the tenants within the time fixed by the terms of the lease for the giving of such notice, and, therefore, the. landlord assumed, to consider the lease at an end and rented the premises to other parties. The contention that the provision in the lease requiring a notice of intention to renew was incorporated therein by means of fraud or mistake is wholly unsupported by evidence. The- terms of the lease are unambiguous, are plain and simple, and are, in effect, that if the tenants desire to continue as such tenants after the expiration of the term of the lease they must serve a notice upon the landlord of such intention, and such is the plain and unambiguous language of the lease.

We think it was hot competent for the Municipal 'Court of the city of Rochester to determine what were the equitable rights of the parties or to say -what should or should not be eliminated from or inserted in sucli lease because of fraud or misunderstanding of the parties; that the power of such court was confined to the interpretation of the lease in the form in which it appears.

Assuming then that the lease should be construed and held to mean precisely-what it says, to wit, that in order to entitle the defendants to continue in possession of the,premises they must serve upon the landlord a notice of their intention so to do, the only remaining question is whether the landlord waived such condition. It seems to me that, assuming that, the evidence produced by the tenants is uncontradicted, it does not have such force or effect. The whole evidence relied upon by the respondents in that regard is that the agent for the appellant asked one of the defendants in substance when the lease expired; that in answer the tenant said : It expires at such a day, bitt “ we have an' option of continuing two years more, and we intend to stay,”' and the agent of the landlord said, All right, all right.” This conversation' occurred before the time to exercise the option on the part of the tenants expired!, and we think that the only inference to be drawn from such conversation is that the landlord intended that the tenants should have the right to continue the lease, provided they conformed to its conditions, to wit, gave notice of their intention to continue the same on or before the 1st ..day of February, 1906. This consideration would seem to have been perfectly well understood by the defendants, because soon after the expiration' of-the time within which they might have done so they sought to serve notice of their intention to continue, in occupancy under the terms.of the forrner lease,

. We are. led to conclude that there is no basis upon -the evidence for the finding which must necessarily have been indulged in by the Municipal Court, either that under the lease a notice '.of in ten-, tion to continue, the same was not necessary, - or that there Was a waiver of such notice of intention to continue..

• • We.sum up the whole matter of this, controversy by ¿saying "that ■by th.e terms of the lease in question it was required of the tenants, if they desired to avail themselves of the option for an extension of: two years, to have served notice of such intention upon the. landlord on or before the 1st day of February, 1906, and that having failed-so to do they simply became tenants bolding over, removable at the will of the landlord.

It follows that the order and judgment should be'reversed, with costs.

All concurred, -except Williams and Robsoh, JX, who dissented.

Judgment of County and -Municipal Courts reversed,, with costs to the. appellant in all courts. ' ;  