
    P. Chauncey Anderson, Appellant, v. Gilbert C. Hebbard, Jr., Respondent.
    (Supreme Court, Appellate Term,
    December, 1907.)
    Landlord and tenant — Termination of relation — Notice — Sufficiency.
    A letter written to a tenant, stating that after a certain date more than thirty days subsequent the rent of the demised prem- . ises will be a certain sum, greater than the present rent, and asking the tenant to let the landlord know whether he desires to keep the premises at that rent, is not such a notice as is contemplated by a clause in the lease providing for its cancellation by thirty days’ written notice of the landlord’s intention to cancel it.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Oourt of the city of New York, sixth district, borough of Manhattan.
    
      Anderson, Pendleton & Anderson, for appellant.
    Walradt, Blaney & Hord, for respondent.
   McCall, J.

The relation existing between the parties to this litigation was that of landlord and tenant and is defined in a written instrument of lease of an apartment in the building 687 Lexington avenue in this city. The term of holding therein defined was a period of eighteen and one-half months, beginning on February 15, 1906, and terminating on September 1, 1907, at a fixed rental of fifty dollar’s per month. The lease, however, contained this clause: “ It is hereby expressly understood and agreed that the-said party of the first part (the landlord) retains the right and privilege of cancelling this lease at any time during the term, provided, however, he gives written notice of his intention to the party of the second part thirty days prior to the' date of cancellation decided upon.” There is no dispute about the facts in the case and, unless the landlord has exercised his option thus above shown to have been specially reserved to him of cancelling this lease, then the term of same would not' have expired until September, 1907; and, as the month’s rental sued for antedated the fixed period of expiration, the defendant, was answerable for the amount sued for and obligated to pay same. On March fifth one Henry Keale personally wrote the following letter to defendant:

Dear Sir.—■ The owner of the building Ho. 687 Lexington Avenue requests me to say that the rent of the apartment now occupied by you in that building will be at the rate of $60 per month from and after May 1st next.
Kindly let me know whether or not you desire to keep the apartment at this rent and oblige,
“ Tours very truly,
“ Henry Keale.”

And this letter, read in the light of the right of cancellation reserved in the lease, presents the only question involved in this litigation, because, as heretofore stated, all the facts being conceded, the question turns on whether from this writing is to be spelled the exercise by the landlord of the right reserved unto him to terminate the tenancy before the time fixed in lease for expiration. In our judgment the agent who wrote that letter was clothed with full authority to represent the landlord and, whatever the purport of his act, it is binding upon the principal; and with that statement we dismiss that feature of the case. But what motive prompted the sending of this letter and what purpose was sought to be worked by it ? Examined from any viewpoint, it is impossible to interpret it in any sense as exercising the right of cancellation reserved. It was not a thirty days’ notice, such as was called for by the terms of the lease. In not a syllable of the writing is there a reference to a cancellation of or intent to cancel an existing lease; and, while it does refer.to an intention to put a higher price upon the occupancy of the apartment after a given date, to wit, May first, some forty or fifty days in the future, it expressly invites the views of the tenant as to whether he will continue upon the increased basis, showing clearly, not an intent to exercise an absolute right established by an existing contract, but when that contract should expire, a statement of terms under which a new contract could be entered into between the parties if they so desired. Of course the landlord was mistaken as to his power to do this, because the existing contract did not expire on May first but on September first of the same year and he could not, had he attempted, enforce the payment of such increased rental, and this it seems to me is the test to apply in determining the question presented by this litigation. We are not left in any doubt about, nor have we cause to conjecture that this letter of March fifth was sent through mistake as to the date of fixed expiration; the correspondence clearly demonstrates it and the defendant himself was fully imbued with the belief, as shown by his testimony, and was fully apprised of the same, and in what we believe was ample time. The correspondence following the letter of March fifth clearly indicates the construction and interpretation put upon it by the parties. Neither party treated the letter as an exercise of the option reserved in the lease. It is unfortunate that the defendant has taken upon himself contractual obligations that may prove onerous; but, in the light of all the circumstances and the proof adduced, it is, in our judgment, impossible to reach any other conclusion than that the letter of March fifth was sent by the landlord under the mistaken impression that the lease expired by its express terms on May first; and what was intended was not. an invitation to the tenant to vacate the premises, but rather to stay, provided he would meet the increase of rental; that the landlord had not thereby exercised the right of cancellation, nor was any such idea conveyed thereby; that the lease did not end until September first, and that the defendant was answerable to the demand for payment and must respond.

Gildersleeve and Ford, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  