
    William Kramer, Resp’t, v. Gustav Amberg, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 1, 1889.)
    
    Landlord and tenant—Recovery of possession—Breach of conditions in lease—Gode Civ. Pro., § 2231.
    Summary proceedings; under section 2231 of the Code Civil Procedure, for the removal of a tenant, will not lie when the landlord is seeking to recover possession on account of a breach by the tenant of some condition, of the lease.
    
      Appeal from a judgment of the district court in favor of the plaintiff in a summary proceeding instituted by the plaintiff as landlord of the premises known.as the “Thalia, Theatre,” 46 and 48 Bowery, New York city, against the defendant, as tenant, to obtain possession of the premises. Defendant’s lease would not have expired by limitation until May 1, 1891, but '• plaintiff claimed the right of possession on the ground that defendant had violated one of 1 the conditions of his lease, in subletting the premises.
    
      Howe & Hummell, for app’lt; A. J. Dittenhoefer, for resp’t.
   Per Curiam.

The Code has not introduced any change into the statute relating to summary proceedings, and the decisions that construed the statute that the Code has superseded, must control our construction of section 2231 of the Code. It has been the law of this state, for many years, that summary proceedings for the removal of a tenant will not lie where the landlord is seeking to recover possession on account of a breach by the tenant of some condition of the lease. Where the lease comes to an end on the happening of a designated event without reference to the wishes of the landlord, so that without the exercise of the landlord’s volition the tenant’s occupancy right, reaches its limit by the mere words of the demise, the lease is said to determine by its own limitation, and in that case summary proceedings may he maintained. In the lease before us the landlord has the option either to terminate or to continue the term of the letting in case the tenant shall sublet the demised premises. If he elects to terminate the letting, he takes advantage of a breach of a condition of the lease, but it is the exercise by him of his option, and not the happening of an event provided foi in the lease, that destroys the tenant’s right to a further enjoyment of the term. This exercise of the landlord’s option is not, in the language of the law, the expiration of a lease by its own limitation; and the uniform construction of the courts has been that where the statute speaks of the £Z expiration of the lease,” the meaning is that the lease has come to an end either by effluxion of rime or its own limitation. The ending of the lease by the exercise of the landlord’s option after condition broken, is the termination, not the expiration, of the lease. Miller v. Levi, 44 N. Y., 492; Beach v. Nixon, 9 id., 35.

It follows, from this, that the final order must be reversed, with costs.  