
    Johanna Dierig, Appellant, v. Julia A. Callahan, Respondent.
    (City Court of New York, General Term,
    February, 1901.)
    Contract — Condition precedent — Landlord and tenant.
    Where a lease covenants that, if the landlord sells the premises during the term and must yield possession, she will pay her tenant a fixed sum for’violation of the lease, and there is an accompanying covenant that the tenant, upon written notice to vacate and upon payment of the said sum, will deliver possession to the landlord, the tenant cannot recover the sum where possession was not delivered by the tenant at the time when the landlord duly required it.
    
      Appeal from a judgment for the defendant upon a verdict directed by the trial judge, and from an order denying a motion for a new trial.
    The covenant of the lease upon which the action was brought reads as follows: “It is hereby covenanted and agreed between the parties hereto, that in case the premises hereby leased shall be sold by the said party of the first part, during the term of the written lease and the purchaser shall demand possession thereof at any time prior to the expiration of the term herein specified, the said party of the first part shall pay to the said party of the second part the sum of $500 in full compensation for violation of this lease and on written notice of 30 days, and upon the payment of the said sum to the said party of the second part she will deliver possession of the premises to the party of the first part.” The plaintiff was not the original lessee, but was in possession and had paid rent to the defendant, which the latter accepted.
    George 0. Coffin, for appellant.
    A. & O. Steckler (Alfred Steckler, of counsel), for respondent.
   Conlan, J.

The action was to recover a sum of money, stipulated in a lease, for the surrender of the premises demised before the expiration of the term, upon the lessor’s demand. The defendant had entered into a contract for the sale of the premises to a third party during the term, which contract was to be closed in June, 1899, and on the twenty-ninth day of April notified the lessee and the plaintiff, the tenant then in possession, to surrender the possession of the premises, under the terms of the lease, on June 1, 1899. It is claimed by the defendant that the plaintiff continued in possession of the premises until June 19, 1899, and notwithstanding this demand, and the plaintiff admits that she retained the key to the premises until the latter date, when she delivered it on demand. This demand for the key was in consequence of a complaint made by the board of health for unclean conditions. Thus, we find there was a condition precedent to be performed by the plaintiff before she would have the right to recover on the covenant.

If she had vacated and surrendered the premises as required by the written notice, this precise condition would have been fulfilled and her right of action would have accrued; without it, she could not recover. The court directed a verdict for the defendant, and from the judgment entered thereon this appeal is taken. We think the direction of a verdict, under the circumstances, was a proper disposition of the case, and do not find anything in the record before us which calls for an interference with that determination.

Judgment and order appealed from affirmed, with costs.

O’Dwyer, J., concurs.

Judgment and order affirmed, with costs.  