
    Sylvan Mortgage Company, Inc., Respondent, v. Milton S. Newman, Appellant.
    First Department,
    May 4, 1923.
    See headnote in Sylvan Mortgage Co., Inc., v. Astruck (ante, p. 455).
    Appeal by the defendant, Milton S. Newman, from a determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 27th day of June, 1922, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Fifth District, in favor of the plaintiff.
    
      Harry Bijur [Harold H. Herts with him on the brief], for the appellant.
    
      Henry S. Mansfield, for the respondent.
   Finch, J.:

No other question except the construction of paragraph 12 of the lease is presented by the parties for decision by the court.

For the reasons stated in Sylvan Mortgage Co., Inc., v. Astruck (205 App. Div. 455), decided herewith, the determination of the Appellate Term affirming the judgment of the Municipal Court should be affirmed, with costs.

Clarke, P. J., Dowling and Merrell, JJ., concur; Page, J., dissents.

Page, J.

(dissenting):

Clause 12 in the lease in this case is different in two particulars from those considered in the cases of Sylvan Mortgage Co., Inc., v. Astruck (205 App. Div. 455) and Sylvan Mortgage Co., Inc., v Turkeltaub (Id. 459), in this, that the clause in this lease requires four months’ notice instead of five, and the words “whenrequested to do so,” and at the option of the lessor were omitted — the theory of the plaintiff being that, as there was a failure to give notice, the lease was thereby automatically renewed for a year, and the action is brought only for the months subsequent to October 1, 1921.

On March 23, 1920, the agent of the plaintiff wrote to the defendant:

“ We have gone over your lease very carefully and I am quite sure from our talk over the telephone that you misunderstand Clause No. 12. This clause provides that if you do not give us notice four months before the termination of this lease, that the landlord can hold you as a tenant for another year at the same rent. To obviate any possible misunderstanding we now beg to advise you that unless we hear from you on or before April first, we will conclude that you do not wish to make a new lease and we will offer the apartment for rent.”

On April 1, 1921, the defendant wrote:

In answer to your favor of March 23rd, and confirming telephone conversation which Mrs. Newman had with Mr. Zittel yesterday, beg to say that it is my intention to renew the lease for my apartment at 306 West 100th Street.”

Thereby the lease was renewed upon the same terms and conditions for an additional term of two years for the reason stated in the case of Sylvan Mortgage Co., Inc., v. Astruck (205 App. Div. 455), decided herewith.

The determination of the Appellate Term and the judgment of the Municipal Court should be reversed and the complaint "dismissed, with costs to the appellant in all the courts.

Determination affirmed, with costs.  