Jones & Brindisi, Inc. v. Breslaw

• Decision Date: 31 December 1928
• Citation: 250 N.Y. 147,164 N.E. 887
• Court: New York Court of Appeals Court of Appeals
• Parties: JONES & BRINDISI, Inc., v. BRESLAW et al.

250 N.Y. 147

164 N.E. 887

JONES & BRINDISI, Inc.,

v.BRESLAW et al.

Court of Appeals of New York.

Dec. 31, 1928.

Action by Jones & Brindisi, Incorporated, against Samuel Breslaw, as executor of the last will and testament of Louis Kaplan, deceased, and Rose Bernstein. From a judgment of the Appellate Division (223 App. Div. 454, 228 N. Y. S. 493) dismissing the complaint and reversing on the law and facts a judgment directed by the court in favor of plaintiff, a jury being waived, plaintiff appeals.

Reversed in part, and in part affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Walter Carroll Low and Carroll Blakely Low, both of New York City, for appellant.

Henry W. Williams, of Glens Falls, for respondents.

CRANE, J.

On the 5th day of April, 1919, Jones & Brindisi, Inc., a domestic corporation, leased to Abram Bernstein and Samuel Bernstein, a copartnership doing business under the name of Bernstein Bros., part of the second floor in a building known as No. 6 East Thirty-Ninth street and 5 East Thirty-Eighth street, in the borough of Manhattan, city of New York, ‘ for the term of two years (2 yrs.) and four months (4 mos.) to commence at noon on the first day of June, 1919, and to end at noon on the thirtieth day of September, 1921, at the yearly rent of three thousand dollars ($3,000).’ The rent was payable in equal monthly payments in advance. The thirteenth clause of the lease read as follows: ‘Thirteenth: It is further understood and agreed by and between the parties hereto that six (6) months before the termination of the present lease, the Landlord will give the tenant the option of renewing present lease for two (2) years upon the same terms and conditions and at the same rental.’

Below the signatures on the lease was the following guaranty:

‘We hereby guarantee the payment of the rent as stipulated in above lease.

‘Bernstein & Kaplan,

‘By L. Kaplan.’

On February 26, 1921, more than six months before the expiration of the term, the tenants exercised their option and extended the lease for two years, as therein provided. In May of 1922 Bernstein Bros. vacated the premises and defaulted in their rent thereafter.

Executions issued on the judgments against Abram and Samuel Bernstein having been returned unsatisfied, this action has been commenced against Rose Bernstein and Louis Kaplan on the guaranty. Kaplan having died, his executor has been made defendant. The holding in the court below has been that the guaranty applied only to the first two years and four months, not to the extended term. This, we think, is contrary to the intention of the parties, as gathered from the surrounding circumstances and the wording of the instrument.

Abram Bernstein and Samuel Bernstein were sons of Rose Bernstein. Louis Kaplan was her brother. Bernstein and Kaplan were in the junk business in Glens Falls. Mrs. Bernstein left everything in the management of the business to her brother. ‘He was my brother and I left to him my business. I know nothing about it. Q. And you gave him permission to do anything that he thought proper? A. Yes. He was my brother. He did the whole business. I never went inside.’

Bernstein Bros., composed of Abram and Samuel Bernstein, desired a lease of the premises in question on East Thirty-Ninth street. They could not obtain it until the rent was guaranteed. When the lease was presented to the landlord for signature, it contained the guaranty of their mother and their uncle, that is, the firm of Bernstein & Kaplan, signed by Louis Kaplan. These guarantors were not strangers to the tenants; they were near relatives interested in their welfare. If the landlord required a guaranty of the rent payable by these young men for the period of two years and four months, it is reasonable to assume that the same security would continue for the full term of the least; that is, the full period during which it (the landlord) was compelled by its agreement to permit the tenants to occupy the premises. The tenants had the right, which they exercised, of leasing the premises for the full term of four years and two months. The landlord was bound for this period. Why should the guaranty cover only two years of it? The words of the guaranty express no such limitation. They are: ‘We hereby guarantee the payment of the rent as stipulated in above lease.’ The rent stipulated in the above lease was for four years and two months if the tenants exercised the privilege of extension. They exercised the option and became bound to pay the rent stipulated in the lease. There was no new lease; none was required; all the stipulations and agreements were contained in the one instrument, which by the election of the tenant continued for four years and two months. Masset v. Ruh, 235 N. Y. 462, 139 N. E. 574,Orr v. Doubleday, Page & Co., 223 N. Y. 334, 119 N. E. 552, 1 A. L. R. 338. These business people knew what a renewal clause in a lease meant. Had they intended merely to be bound by a term of two years and four months or any other period less than the full term, the contract of guaranty would have so stated. It is evident they had nothing of this kind in mind. The young men going into business in New York, and needing floor space, procured a lease, upon the mother and uncle guaranteeing the rent for the full term of the lease. This is what the parties intended to do; this is what they did do. Nothing in the guaranty indicates a different intention. On the contrary, it has this meaning.

The case of Knowles v. Cuddeback, 19 Hun, 590, is cited as an authority in favor of the surety under similar facts. I say ‘similar’ because the facts are not the same in one important detail. The tenant in that case failed to exercise his option thirty days before the expiration of the lease; he gave only three days' notice of election. It might have been held that the waiver by the landlord in consenting to this short notice was a release of the surety. No such point, however, seems to have been made in the case, as the surety was held not liable on the ground that the renewal was a new lease. The court said: ‘The privilege of renewal is more like a buyer's option not uncommon in modern transactions, and it is generally understood that, if the option is availed of, a transfer or conveyance must be formally given to effect a consummation of the contract.’ And in distinguishing the case of Decker v. Gaylord, 8 Hun, 110, the court said that in that case it appeared that the...