
    Wonforo Realty, Inc., Appellant, v. Joseph S. Wachtel, Respondent.
    Supreme Court, Appellate Term, First Department,
    June 19, 1958.
    
      Edward Davis for appellant.
    
      Joseph S. Wachtel, respondent in person.
   Per Curiam.

Since the tenant was in possession under an unexpired lease and not as a statutory tenant, the landlord could evict for violation of an obligation of the lease only by exercising the right to terminate the lease given by the conditional limitation clause (Almarine Realty Corp. v. Stern, 203 Misc. 190; Parkton Estates v. Metcalf, 72 N. Y. S. 2d 324; 89-09 Sutphin Corp. v. Scarinzi, 187 Misc. 536). The landlord did not proceed under that clause, even assuming its applicability to the situation shown.

The final order should be modified so that the petition is dismissed without prejudice to the landlord’s right, if any, to proceed under the conditional limitation clause, and as modified affirmed, without costs.

Concur — Hoestadter, J. P., Hecht and Tilzer, JJ.

Final order modified, etc.  