
    PENOYER v. BROWN.
    N. Y. Marine Court (now City Court);
    
    
      before Judge David McAdam,
    June, 1882.
    Summary Proceedings.—Landlord and Tenant.—Lease ; Conditional Limitation, Condition Subsequent.—Ejectment.
    In an apartment lease, a provision declaring that the lease is granted “on the express condition” that the landlord, if he should deem the conduct of the tenant objectionable, might re-enter either with or without legal process, on giving previous notice and repaying rent; and that in the event of the tenant’s violation of any condition, the lease should cease at the landlord’s option,—Held, to bo a condition subsequent and not a conditional limitation.
    
    Hence the landlord cannot dispossess the tenant under such a clause, by summary proceedings under the statute, but his remedy is by action.
    
      Summary proceeding by landlord, against tenant, for an alleged holding over of demised premises.
    William J. Penoyer, the owner of an apartment house of the kind commonly known, in New York city as French flats, demised a flat thereof to William Brown, by written indenture of lease, dated November 12, 1881, for the term of one year then next. The lease contained the following clause, not unusual in New York city, in leases of this kind :
    “The lease is granted upon the express condition, however, that in case the said landlord, his agents or assigns, deem objectionable or improper the conduct on the part of the said tenant or occupant, said landlord, his agents or assigns, shall have full license and authority to re-enter and have full possession of said premises, either with or without legal process, on giving five days’ previous notice so to do, and tendering repayment of the rent paid on account of the unexpired term demised, and upon the expiration of said notice, and tender of payment as aforesaid, said landlord, his agents or assigns, shall be entitled to the immediate possession of the demised premises.”
    The lease also contained a covenant “ that the character of the occupancy was an especial consideration and inducement for the granting of the lease; ” and in the event of a violation by said tenant of any condition imposed in said lease, “ that said lease and agreement should at the option of said landlord cease, and determine, and be at an end.”
    Before the expiration of the demised term the landlord tendered back the rent paid, and gave five days’ prior written notice of his election to terminate the tenancy. At the expiration of the five days, and after demand duly made, the landlord petitioned the Hon. David McAdam, Judge of the marine court, for a final order to remove the tenant from the possession of the demised premises, on the ground that the tenant held over after the expiration of his term.
    The petition alleged, in addition to the foregoing facts, that the tenants, or the inmates of his flat, had been guilty of drunkenness and disorderly conduct (to the great discomfort and annoyance of other tenants of the house), deemed objectionable and improper, and that by reason thereof the landlord had elected to terminate the tenancy and resume possession, but the tenant held over notwithstanding. Judge McAdam granted the usual precept. The tenant, having failed in his effort to procure an absolute writ of prohibition from the supreme court restraining the judge of the marine court from taking cognizance of the landlord’s petition (see the appeal in the Prohibition case reported in 2 Civ. Pro. P. 52), and the matters having been remitted to Judge McAdam, next filed a plea to the jurisdiction of the marine court justice, and moved before him to dismiss the proceeding for want of jurisdiction.
    
      Robert Ludlow Fowler, for the tenant and motion to dismiss for want of jurisdiction.—I.
    By section 2231 of the Code of Civil Procedure, the legislature did not intend to create a tribunal to determine whether the tenant has been guilty of forfeiture (Oakley v. Schoonmaker, 15 Wend. 226 ; Benjamin v. Benjamin, 5 N. Y. 383; Beech v. Nixon, 9 N. Y. 35).
    II. Unless the tenancy has expired by the landlord’s notice, § 2231, Code Civ. Pro. does not authorize this proceeding.
    III. The clause in the lease giving the landlord license to re-enter after notice and tender of rent paid constituted a condition subsequent and not a conditional limitation (§§ 2127, 2130, 2135; Crabbe's Law of Real Prop). If the clause in question is a condition subsequent, this court has no jurisdiction (Code Civ. Pro. 
      § 2231); but it is conceded to be otherwise if it is a conditional limitation, for then the tenancy has expired and the tenant holds over.
    In this lease of Penoyer to Brown, the words “upon condition ” indicate that the clause does not constitute a conditional limitation (Bacon’s Abr. tit. Conditions, H.; Mary Portington’s Case, 10 Goke, 41; Jackson v. McClallen, 8 Cow, 296). Although Mary Portington’s case has been denied, it has never been denied except where the estate is limited over to a third person (Holt, J., 11 Mod. 61; Stearns v. Godfrey, 16 Maine, 160). The difference between a condition and a limitation is often subtle (Taylor’s Landl. & T. § 273) ; and the ordinary text writers are not always perspicuous in their comments on such difference. Proprietors, &c. v. Grant, 3 Gray, 146, 147, marks the true distinction between the two legal conceptions ; so, Comyn’ s Landl. & T 103.
    IV. The tenancy in this case did not expire by the lapse of time after the mere sending of the written notice. Other factors must concur in this case. Such is evidently the theory of the landlord’s petition, for lie sets up the facts constituting bad conduct on the tenant’s part. If the written notice, then, does not terminate the tenancy, it is obvious that the demise has not expired by limitation, and that the landlord relies on the breach of condition for the forfeiture of the term. Now, a conditional limitation cannot depend on the breach of a condition. In Miller v. Levi, 44 N. Y. 489, the written notice operated alone as a conditional limitation. The distinction between that case and this is apparent. In that case it was analogous to the reservation of a power to terminate an estate for life. Here' the conduct of the tenant must be bad in order to work a forfeiture which is a condition subsequent per se.
    
    V. The same policy which dictates that estates shall be vested rather than contingent, and take effect as a remainder rather than as a springing or shifting use, dictates that this clause shall be construed as a condition subsequent rather than as a conditional limitation. The law favors the condition of homes and estates which shall be subject only to the law of the land, and nob be broken up by unreasonable whims of landlords, or by private police supervision. The tenant should not be deprived, in this case, of the right to have his day in court, in the usual formal action to annul the lease for forfeiture of condition.
    VI. The landlord’s only remedy is to bring his action for forfeiture, by reason of the alleged breach of the condition subsequent (Linden v. Hepburn, 5 How. Pr. 188 ; Clark v. Jones, 1 Denio, 516).
    VII. The condition is void, in any event, for uncertainty (see Comyn's 7th Rule, Part IV. p. 532; Smith's Executory Ints., annexed to Fearn Cont. Rem. § 696; Newkirk v. Newkirk, 2 Cai. 353), or as repugnant to the grant.
    
      Wm. H. Haeselbarlh, for landlord, opposed—
    I. The covenant broken was a conditional limitation. The term has expired (Miller v. Levi, 44 N. Y. 489).
    II. A limitation determines the estate absolutely, whatever be its nature (1 Preston Est. 40, 59 ; 2 Blackst. Comm. 155, 156; 4 Kent's Comm. 125,128).
    III. The condition is not repugnant to the grant, as claimed in behalf of the tenant.
    IV. Public policy should uphold these conditions as limitations, owing to the crowded state of the apartments of New York. An action for forfeiture would be useless; the tenancy would expire by the lapse of the term demised before such action could be brought to trial.
    
      
       Bee following cases.
      Professor Gray says (Gray's ResPi'aints on Alienation § 22, note). The term “conditional limitation” is used in two senses. In the sense in which it is generally employed by courts and writers, it is a generic term, comprising two species, (1) shifting uses, and (2) executory devises, and is a proviso cutting short an estate previously created, and substituting another in its stead. This is the sense in which it is used in this essay. It is very convenient to have such a common term for shifting uses and .executory devises; but, unfortunately, some writers have confused legal nomenclature by attempting to use it in another sense. With them it means a proviso operating to determine an estate by its intrinsic force, but not by itself substituting another. In a devise to A. and his heirs, but if A. dies unmarried then to Ji. and his heirs, the words in italics form a conditional limitation in the first sense, while in a devise to A. so long as he remains unmarried, the words in italics form a conditional limitation in the second sense. A proviso of this latter kind is generally called a special limitation. Among the treatises in which the term “conditional limitation” is used in the first sense are, Fearne Cont. Rem. 14, 15; Butler, Notes to Fearne, Cont. Rem. 381; Smith, Executory Interests, § 149; 3 Prest. Abs. 284; Williams on Settlements, 21; 2 Cruise, Dig. 315; 4 Kent. Comm. 249, 250. See Gilbert Uses, (Sugd. ed.) 178, note. Those in which it is used in the second sense are, 1 Sand. Uses, 150, 151; 1 Steph. Comm. (8th ed.) 295, note (k); 1 Leake, Land Law, 216, note (a); Tud. L. C. on Real Prop. (3d ed.) 347, 348.
    
   McAdam, J.

The determination of this motion depends upon whether the provision in the lease creates a conditional limitation or a condition subsequent. The distinction between the two is subtle, and the construction must depend upon each particular case presented. 61 Conditions in law,” which are usually termed limitations, are where a contingency is limited in the grant of the estate, the happening of which shall ipso facto put an end to it. But a “condition in deed” is merely a proviso that the grantee shall, or shall not, do a particular act the breach of which will not ipso facto defeat the estate, but will only give power to the grantor to re-enter, and by such re-entry to avoid the estate. The lease in question is for one year from November 12th, 1881, and the provision for terminating it on five days’ notice is, by the terms of the lease, made to depend on the conduct of the tenant, whether good or objectionable. If good, there was no warrant for the notice ; if bad, the notice was allowable. This objectionable conduct constituted a breach of the condition, and authorized the lessor to re-enter. This right of reentry must be enforced by the ordinary common-law action of ejectment, and cannot be coerced by summary proceedings.

The distinction between this case and Miller v. Levi (44 N. Y. 489), although close, is yet obvious, upon examination. Whether a provision is to be construed as a condition or as a limitation of the estate must depend upon the language employed; and a slight change in the phraseology used in the present lease might have brought it within the rule creating a limitation ; but the present form of the lease creates no more than a condition subsequent.

Conditions tending to defeat a grant are always strictly constrned ; and by applying this rule of interpretation to this case, it follows that the proceedings must be dismissed and the landlord remitted to his appropriate remedy by action.

Order accordingly.  