
    Morris Weintraub, Appellant, v. Jonas Weil and Bern hard Mater, Respondents.
    (Supreme Court, Appellate Term,
    March, 1907.)
    Vendor and purchaser — Enforcement generally — Action by purchaser for recovery back of purchase price — Burden of proof and presumptions.
    The burden is upon the vendee, under a contract for the sale of real estate, to show that his rejection of the title was for a good and valid reason.
    Where a vendee, under a contract for the sale of certain real estate, occupied by a tenant and sub-tenant, seeks to recover a deposit made as part of the purchase price, upon the ground that he had rejected the title because the lease had not been termi- ' nated as prescribed therein, and it appears that the tenant had agreed to annul the lease and had surrendered the premises, it will be presumed, in the absence of proof to the contrary, that the surrender of the original lease was executed in conformity with the terms of the lease and that the sub-tenant’s rights had been extinguished.
    Appeal by the plaintiff from a judgment entered in the office of the clerk of the City Oourt of the city of Hew York in favor of the defendants, upon the verdict of a jury rendered by direction of the court, and from an order denying plaintiff’s motion for a new trial.
    Manheim & Manheim (Jacob Manheim and Harry'A. Gordon, of counsel), for appellant.
    Arnstein & Bevy (Samuel Levy, of counsel), for respondents.
   Gildersleeve, J.

The plaintiff appeals from a judgment of the City Oourt in favor of the defendants, entered upon the verdict of a jury, rendered by direction of the court, and from an order denying the plaintiff’s motion for a new trial. The action was brought to recover the sum of $700, deposited by the plaintiff as part of the purchase price, under 'a contract for the sale of real estate, together with the sum of $175, the reasonable expense incurred in the examination of the title. The closing of the title failed for the reason that,. in the opinion of the plaintiff, the defendants did not tender a title in accordance with the terms of the contract. The case was tried upon an agreed statement of facts. The appellant challenges the judgment upon three grounds, upon the theory that in the direction of the verdict the court below erroneously overruled each of the three grounds of his contention. It appears that the defendants, on January 30, 1902, made a lease of the entire premises to one Sarah Vladofsky, for a term of five years from the first day of February, 1902. This lease contained the following provision : It is further agreed by and between the parties hereto that, in case the said party of the first part (the defendants) desire to concel this lease and regain possession of the house hereby demised, they shall, have the right and are hereby empowered so to do, upon returning to the said party of the second part (Sarah Vladofsky) the sum deposited as security ($400) and paying in addition the sum of $100, and the said party of the second part (Sarah Vladofsky) upon receiving ten days’ notice and receiving such sum hereby agrees to cancel this lease and surrender said premises.” ' It further appears that, on May 6, 1903, this lease was assigned to Gussie Vladofsky, and that, on April 1% 1905, the said Gussie Vladofsky agreed to an annulment of the lease and surrendered the premises to take effect as of April 4, 1905. It further appears that, by a written lease bearing date February 1, 1905, Gussie Vladofsky rented the basement of the premises in question for a term of two years and three months, beginning February 1, 1905, and ending May 1, 1907, to Moses Deitz. It further appears that said Dcitz entered into possession of the said basement, and that subsequently, by regular assignments, one Dora Bernstein became a sub-tenant of the basement, and was in possession thereof at the time appointed for the performance of the afore-mentioned contract and at the time of the trial. The principal point urged by the appellant as ground for reversal ig that the lease of the entire premises between the defendants and Sarah Vladofsky was not terminated in the manner prescribed in the lease, and that, therefore, the rights of Dora Bernstein as a subtenant were not affected by the alleged surrender, and that she was entitled to possession of the basement until February 1,.1907. It is the contention of the appellant that, if this ground of objection is not sustained, he is entitled to have considered other grounds, set forth in his brief, which he claims entitle Dora Bernstein to the possession of the basement, notwithstanding the alleged surrender by Vladofsky. We think the record fully supports the claim of the respondents that there was but one question litigated on the trial, namely, the encumbrance upon the title by reason of the lease under which Bernstein claimed possession. Without reviewing the various stipulations by counsel, as they appear upon the record, the following, which is the latest direct reference to the point to be litigated, seems to be conclusive. It is as follows: Defendants’ counsel: Let me understand before we go any further. Do you or do you not stipulate in this case that the only point to be litigated is this encumbrance that was created by the lease from the assignee of Mrs. Vladofsky to Moses Deitz and his respective assignees ? Do you stipulate that, or don’t you ? It must be either 'yes’ or 'no.’ The Court: That is already on the record; I therefore direct a verdict in favor of the defendants.” The appellant as ground for reversal invokes the application of the rule laid down in Eton v. Luyster, 60 N. Y. 252. In that case, as here, the defendant claimed the right of possession by reason of a surrender of the term by the original lessee, without the knowledge or assent of a subtenant, and not in conformity to the terms of said lease. The lease contained a clause providing for the termination thereafter, at the option of the landlord, after two months’ notice. It was held that the lease could not be terminated and the subtenant’s rights abrogated, except in the manner and upon the terms prescribed in the lease. We are unable to apply this principle in aid of the appellant, for the reason that it nowhere appears in the record’, by proof or by admission, that the surrender of the original lease was not. executed in conformity with the terms thereof. For all that appears, the-ten days’ notice provided for was duly given. Ho wrongdoing on the part of the landlords has been alleged or proven. In the absence of such allegation and proof, it must be presumed that the lease was terminated in strict accordance with the terms. The burden was upon the plaintiff to show that his reason for the rejection of the title, was a good and valid reason, and that the surrender was not executed in accordance with the terms of the limitation expressed in the lease. G-reenblatt v. Hermann, 144 H. T. 13.

For these reasons we are of opinion that the judgment and order should be affirmed, with costs to the respondent.

Davis and Hendrick, JJ., concur.

Judgment affirmed, with costs to respondent.  