Werber v. Weinstein
| Decision Date | 03 March 1955 |
| Citation | 207 Misc. 707 |
| Parties | Moses Werber, Landlord,<BR>v.<BR>Thelma Weinstein, Tenant, and "John Doe", Undertenant. |
| Court | New York District Court |
Robert Konove for landlord.
Leon Schreiber for tenant.
This is a holdover proceeding wherein the landlord seeks to evict the tenant from an apartment occupied by her at premises 204 West 179th Street, Bronx, New York, together with garage and storage space. The alleged ground upon which eviction is sought is that the tenant is violating a substantial obligation of her tenancy in that she had sublet a portion of the premises without the permission or consent of the landlord and had failed to desist from such violation after notice served upon her, pursuant to paragraph (a) of subdivision 1 of section 5 of the State Residential Rent Law (L. 1946, ch. 274, as amd.). Due service of such notice is not disputed.
The portion of the premises claimed to have been sublet without the permission or consent of the landlord, is the garage. The lease in evidence, appears to have expired on May 31, 1953, and the terms thereof are, of course, projected into the statutory tenancy which now prevails. The lease describes the demised premises as: "the apartment known as apartment on the ground floor, in the building known as 204 West 179th Street, in the Borough of Bronx, City of New York." No mention is made of the garage or any specific portion thereof, being demised with the apartment. However, at the trial the tenant introduced into evidence a statement of registration with the Temporary State Housing Rent Commission which includes the garage as one of the services provided with the housing accommodation.
It is undisputed that about a year and one half prior to the institution of the present proceeding, the tenant sublet the garage to a third person, without first obtaining the permission or consent of the landlord so to do. The lease contains the standard clause prohibiting the assignment or subletting of any part of the "demised premises" without the landlord's written consent. It is equally undisputed that the landlord knew of such subletting "right away" — when it took place — and nevertheless continued to accept the rent payable, throughout the entire period in question until December, 1954, and January, 1955. The rent for said months was offered by the tenant but was sent back by the landlord.
The contention is made on behalf of the landlord, that the prohibition against subletting any part of the demised premises applies to the garage even though the language in the lease does not include the garage in its description of the premises rented. This is very much open to question. The lease was prepared by attorneys for the landlord and must, of course, be strictly construed against the landlord, the more so because the application of the restrictive covenant would...
To continue reading
Request your trial
-
American Book Co. v. Yeshiva University Development Foundation, Inc.
...v. Schnaier, 119 App.Div. 815, 104 N.Y.S. 921; Syracuse Savings Bank v. D'Elia, 185 Misc. 928, 56 N.Y.S.2d 800; Werber v. Weinstein, 207 Misc. 707, 138 N.Y.S.2d 196. Provisions restricting assignment or subletting are restraints which are not viewed with favor by the courts. Francis v. Ferg......
-
41st St. Bldg. Corp. v. Rothenberg
...the custom and continuous sublettings. Woollard v. Schaffer Stores Co., 272 N.Y. 304, 5 N.E.2d 829, 109 A.L.R. 1262; Werber v. Weinstein, 207 Misc. 707, 138 N.Y.S.2d 196, and cf. Ornstein v. 1440 Associates, Inc., Sup., 173 N.Y.S.2d However, the landlord contends that the basic issue here i......
-
Melroy Realty Corp. v. Siegel
...62, 63; Kingdale Realties v. Sherry, Sup., 106 N.Y.S.2d 796; Farose Realty Corp. v. Shaff, Mun.Ct., 117 N.Y.S.2d 375; Werber v. Weinstein, 207 Misc. 707, 138 N.Y.S.2d 196; Madison Avenue and 92nd Street Corporation v. Hickey, 15 Misc.2d 1002, 182 N.Y.S.2d 180; Fanchild Investors Inc. v. Coh......