Probst v. Rochester Steam Laundry Co.

• Decision Date: 27 June 1902
• Citation: 64 N.E. 504,171 N.Y. 584
• Parties: PROBST v. ROCHESTER STEAM LAUNDRY CO.
• Court: New York Court of Appeals Court of Appeals

171 N.Y. 584

64 N.E. 504

PROBST

v.ROCHESTER STEAM LAUNDRY CO.

Court of Appeals of New York.

June 27, 1902.

Appeal from supreme court, appellate division, Fourth department.

Action by John G. Probst against the Rochester Steam Laundry Company. From a judgment of the appellate division (69 N. Y. Supp. 1144) affirming a judgment for plaintiff, defendant appeals. Affirmed.

On the 19th of July, 1897, the plaintiff, by an instrument in writing, leased his store in the city of Rochester to one Stadler for the term of one year from that date, at the rent reserved of $6 a week. The lease contained the following clause: ‘The party of the second part has the option of two more years upon same conditions, provided he gives the owner of store a written notice of such intention three months before the expiration of first year.’ Stadler went into possession and occupied the premises until September 29, 1897, when he assigned the lease to the defendant; there being no stipulation therein prohibiting the assignment thereof. The defendant took possession at once, and continued in occupation until the 15th of November, 1898, when it assigned the lease to one of its employés, after paying the rent to that date. This action was brought to recover the rent which accrued between November 16, 1898, and May 15, 1900, on the theory that the defendant had exercised the option to extend the lease, and had become liable to the plaintiff accordingly. After finding the foregoing facts, in substance, the trial court further found that: ‘At the expiration of the term on the 18th day of July, 1898, the defendant did not vacate or surrender possession of the premises, nor remove therefrom, but continued in possession of the same with the consent of the plaintiff, paying rent therefor to the plaintiff, down to and including the 15th of November, 1898; and the defendant, by so continuing in possession of the said premises, with plaintiff's consent, after the expiration of the term of one year mentioned in said lease, paying the rent therefor named in the lease to the plaintiff, elected to, and did, exercise the option contained in the lease to renew the same for the additional period of two years from the 19th day of July, 1898, the plaintiff waiving the written notice of such election on the defendant's part required by the lease.’ Judgment was directed against the defendant for the amount claimed by the plaintiff, and after affirmance by the appellate division, all the justices concurring, the defendant appealed to this court.J. B. M. Stephens and Kendall B. Castle, for appellant.

Heman W. Morris, for respondent.

VANN, J. (after stating the facts).

A lessee who enters into possession of demised premises under a lease for a fixed term, with the privilege of extending it by giving written notice to the lessor, and continues in possession after the fixed term has expired, paying the rent thereafter as it becomes due, thereby elects to exercise the option for an extension of the term, although no express notice of such election is given. Long v. Stafford, 103 N. Y. 274, 283,8 N. E. 522. In such a lease the requirement of a written notice may be waived by the parties, and a waiver will be implied when the lessee remains in possession and pays the rent to the lessor. Id. The assignment of the lease in question by the lessee to the defendant conferred upon it all his rights, including the privilege of exercising the option to extend the term. ‘The benefit running with the land is transmitted by assignment.’ McAdam, Landl. & Ten. (3d Ed.) 377; Piggot v. Mason, 1 Paige, 412. The assignee thereupon became liable for the rent by...