
    George B. Estelle, Respondent, v. Mary Dinsbeer, Appellant.
    (New York Common Pleas—Additional General Term,
    August, 1894.)
    A lease of premises for five years contained a recital that it was further agreed that the tenant should pay in addition to the monthly rent “ the further sum of $100 on the fifteenth day of each and every month as part payment of the furniture in said house, as per mortgage on said furniture, and if not so paid this lease shall become null and void.” Held, that this provision was a conditional limitation, and a default in . the payment terminated the lease without any act on the part of the landlord, and that in such case summary proceedings for nonpayment of rent were not maintainable, but that the proper remedy was by proceedings against the tenant as a holdover.
    Appeal from a judgment of the District Court of the city of Hew York for the eighth judicial district, awarding possession of the premises Ho. 244 West Thirty-ninth street in this city to the landlord.
    
      George A. McDermott, for tenant, appellant.
    
      P. G. Talman, for landlord, respondent.
   Bookstaver, J.

The petition of thé landlord recited that the rent for the month of March, 1894, amounting to $125, was unpaid, and that it was due pursuant to the lease. The answer denied the lease and terms of agreement as set forth in the petition, and alleged that through fraud, and by means of false representations, she paid the landlord $1,000, which is still due her, and further alleged that the landlord failed to perform the conditions of the agreement, and that the lease became forfeited on or about the 15th of February, 1894, on default of the payments therein provided, and, therefore, that the court was without' jurisdiction. The lease contains the following recital: “ And it is further understood and agreed that the party of the second part is to pay, in addition to the monthly rent of $125, the further sum of one hundred dollars ($100) on the 15th day'of each ahd every month as part payment of the furniture in said house 244 West 39th street, as per mortgage on said furniture, and if not so paid this lease shall become null and void.”

On the trial it appeared, without contradiction, that the $100 due on the mortgage on the fifteenth day of February had not been paid, and, in our judgment, this default terminated the lease by its terms without any act on the part of the landlord. The distinction between a condition subsequent contained in a lease and a conditional limitation of a lease must here be kept clearly in mind. In the one case the landlord may elect to disregard the breach of the condition, and treat the lease as still existing; in the other case he has no election, but the lease terminates by reason of the happening of the event. The case of the breach of a condition subsequent is well illustrated in Cramer v. Amberg, 16 Civ. Proc. Rep. 441, where the General Term of this court held that the breach of a condition subsequent by the tenant does not of itself operate to determine the demised estate; that such a result is obtainable only by the landlord’s re-entry for breach of the condition ; that without such re-entry the term cannot be said to have expired, and hence for a breach of a condition subsequent summary proceedings to recover the possession of the demised premises cannot be maintained on the ground that the tenant continues in possession after the expiration of the term. See, also, Burnett v. Scribner, 16 Barb. 621; People v. Howlett, 76 N. Y. 574; Miller v. Levi, 44 id. 489; Lynch v. Onondaga Salt Co., 64 Barb. 558.

Here, however, the lease is in effect that it shall continue for the period of five years unless sooner determined by the nonpayment of the monthly installment to be paid upon the mortgage according to its terms. In this case no condition is violated, but the term expires of its own limitation upon the happening of the event provided for. Be-entry is not required to reinvest the landlord with ■ the right to immediate possession, and summary proceedings to recover it from the tenant as a holdover are maintainable. Miller v. Levi, 44 N. Y. 489; Manhattan Life Ins. Co. v. Gosford, 3 Misc. Rep. 509; 52 N. Y. St. Repr. 419; Horton v. R. R. Co., 12 Abb. N. C. 30; 8 Am. & Eng. Ency. of Law, 447, and cases cited under subd. 6; Stuyvesant v. Davis, 9 Paige, 431; Parmelee v. R. R. Co., 6 N. Y. 74; Beach v. Nixon, 9 id. 36; Von Kamen v. Roes, 48 N. Y. St. Repr. 921; Gerard’s Title to Real Estate, 191; McAdam Landl. & Ten. 43.

This being the case, the relation of landlord and tenant did ■not exist when the petition was filed, and the proceeding •should have been against the tenant as a holdover and not for the nonpayment of rent. Such proceeding in the form instituted in this case could only be entertained when the relation •of landlord and tenant exist by the agreement of parties and not by operation of law. People v. Cushman, 1 Hun, 73; Livinston v. Tanner, 14 N. Y. 64; People v. Simpson, 28 id. 55.

Having arrived at this conclusion, it is unnecessary to ■examine the other questions raised upon this appeal. The final order and all the proceedings resulting therein should be ■set aside and declared null and void, with costs of this appeal "to the appellant.

Bisohoff, J., concurs.

Pinal order and all proceedings .set aside and declared null and void, with costs of appeal to appellant.  