
    Radcliffe Associates, Inc., Respondent, v. Jack Greenstein, Appellant.
    First Department,
    October 18, 1948.
    
      
      Samuel Morganroth for appellant.
    
      James E. Birdsall of counsel (Warner & Birdsall, attorneys), for respondent.
   Per Curiam.

In this summary proceeding the record shows that the tenant occupied the premises from December 1, 1934, under various leases (the last in 1945) all of which specified that the property was to be used for a butcher shop only but that, nevertheless, throughout the tenancy the tenant sold substantial quantities of groceries without any objection from the landlord and the landlord was charged, owing to this lapse of time, with notice of the tenant’s conduct and with the character of his actual tenancy.

The premises were sold to the landlord petitioner in February, 1946. Rent was collected by the subsequent landlord until December 20, 1946, when notice was given to desist from selling groceries.

The present landlord took the premises under the conditions as to tenancy that its predecessor had established (Adams-Flanigan Co. v. Kling, 198 App. Div. 717, affd. 234 N. Y. 497; Anderson v. Conner, 43 Misc. 384.) There is, furthermore, evidence that the present landlord waived the terms of the lease since the sale of groceries was continuous, open and notorious. Evidence was admitted at the trial to establish waiver on the part of the present owner as well as of the previous owners and though no motion was made to conform the pleadings to the proof, no specific point was made that waiver by the present owner had not been pleaded. Had such objection been taken, a formal amendment could have been made. As the record stands, it is clearly established on the facts, that the present landlord itself waived any violation of the lease.

On both grounds, therefore, the determination of the Appellate Term and the final order of the Municipal Court in favor of the landlord should be reversed and the petition dismissed with costs to the tenant-appellant in all courts.

Peck, P. J., Dore, Cohn, Callahan and Shientag, JJ., concur.

Determination of the Appellate Term and final order of the Municipal Court unanimously reversed and the petition dismissed, with costs to the appellant in all courts. [See post, p. 984.]  