
    Ann Foley, Respondent, v. Alphonse Constantino, Appellant.
    (Supreme Court, Appellate Term,
    February, 1904.)
    Lease — Construction.
    A condition, in a lease, secured by a deposit, that should the lessor desire to sell the demised premises she shall give the lessee sixty days’ notice in writing, the deposit and $500, “to surrender said premises ” and that the lessee on receiving the same “ will surrender ”, is merely a privilege to the landlord so to act in case he wishes to end the lease when he sells, and is not a provision available to the tenant as a counterclaim, for the deposit and the $500, to an action for rent unpaid brought by a purchaser under the landlord who has permitted the tenant to remain in occupation.
    Appeal by the tenant from a final order in summary proceedings to remove him for nonpayment of rent, made by the Municipal Court of the city of New York, third district, borough of Manhattan, upon a trial had before the court, without a jury.
    
      Jones Cochrane, for appellant.
    W. K. Van Meter, for respondent.
   Giegebich, J.

These proceedings were instituted to remove the tenant from the premises known as No. 552 West Broadway, borough of Manhattan, New York city, after a default in the payment of rent for two months, viz.: the months of May and June, 1903.

The premises in suit were leased to the tenant by one Ann. Quirk, then the owner in fee, by a written lease dated the 29th day of July, 1901, for the term of five years from April 1, 1901, at the monthly rent of $265.

The lease, among other things, contains two clauses, one for a deposit of $265, to secure the payment of rent and the performance of covenants, and the other provision, “ That should the party of the first part sell the said premises she shall give to the' said party of the second part (tenant) sixty days notice in writing, said sum of two hundred and sixty-five dollars ($265.00) together with five hundred dollars ($500.00) to surrender said premises, and the said party of the second part on receiving said sixty (60) days written notice, said sum of two hundred and sixty-five dollars ($265.00) together with five hundred dollars ($500.00) will surrender said premises to the said party of the first part and not otherwise.”

Subsequent to the execution of the lease, viz., on or about January 30, 1903, the lessor, Ann Quirk, conveyed the premises to the petitioner, of which conveyance the tenant had due notice.

The tenant having failed to pay the rent for the months first above mentioned, these proceedings were instituted. The answer after specifically denying each material allegation of the petition, sets up a counterclaim for $765, alleged to be due under the covenant above quoted; the tenant averring “ that the said Ann Quirk did sell and convey said premises to Ann Foley on or about February second, 1903, and that neither said Ann Quirk nor said Ann Foley, upon whom said agreement is also binding, have in any respect complied with the provisions of said agreement or covenant, in that they have not, nor either of them, given to said Constantino, tenant, the notice provided for as aforesaid, except that on March 9th, 1903, they notified him of such conveyance, nor given or paid to him either of the sums so provided to' be given or paid to him in the event of such sale.”

It is clear to us, that the provision that the landlord, in the event of sale, was to give sixty days notice in writing, the said sum of $265, together with $500, to surrender said premises,” means literally what it says, namely, not that notice of sale was intended, but notice to surrender, and that $265 and $500, should also be given to the tenant to surrender, i. e., as compensation for the surrender and loss of the remainder of the term, if the landlord so desires to end the lease. It is not, therefore, a provision which the tenant could claim the benefit of, in the event of a sale to a purchaser who should be willing to continue the lease, as the plaintiff apparently was. It was merely the customary precaution, taken by an owner wishing to sell, so that the property might be sold free of tenancies, if so desired. It was an option, not to the tenant, but to the landlord.

The record is barren of any proof that the landlord exercised such option. The mere sale and conveyance of the property by the lessor to the petitioner, and notice thereof to the tenant, did not, as claimed by the latter, have the effect of terminating the lease; on the contrary it continued unimpaired, and since it is undisputed that the rent has not been paid for the period in suit, and there being no valid counterclaim or offset to the claim for such rent, the final order in favor of the petitioner was properly made.

The final order should, therefore, be affirmed, with costs.

Fueedmatt, P. J., and McCaee, J., concur.

Final order affirmed, with costs.  