MASSET v. RUH, 235 N.Y. 462 (1923)

139 N.E. 574

GEORGE MASSET, Appellant, v. CLARA RUH, Respondent.

Court of Appeals of the State of New York.Submitted March 16, 1923
Decided April 17, 1923

Page 463

Charles Pearle for appellant.

Nicholas Dietz for respondent.

ANDREWS, J.

On August 9, 1916, the premises No. 295 Ridgewood avenue, Brooklyn, was occupied as a garage. On No. 291 was a dwelling. Both were owned by Clara and Louis Ruh as tenants by the entirety. On that day they leased No. 295 to the plaintiff for the term of three years. The lease contained the provisions that the lessee was given “option of renewal for three years from expiration of lease on same terms and conditions,” and that “the parties of the first part give the party of the second part the right and option to purchase the premises 291 and 295 Ridgewood avenue for the sum of $10,000 at any time during the term and existence of lease.” A few days later Louis Ruh died. In April, 1919, the plaintiff exercised his option to renew the lease. In November, 1920, he sought also to exercise the option to purchase the two parcels for $10,000. A conveyance was refused and this action was begun to compel specific performance of the agreement. In the courts below it has been held that the plaintiff was too late. The sole question before us that needs consideration is whether this is so.

We think he was not. The option “could be exercised

Page 464

at any time during the term and existence of lease.” The lease did not expire until August, 1922. We so held in Orr v Doubleday, Page Co. (223 N.Y. 334, 340.) “The exercise by the defendant of the privilege of renewal,” we said, “extended the term of the lease for the additional period of ten years as a present demise for the full term of twenty years, the last half of which was to take effect at the termination of the first, at the option of the defendant. A new lease for the additional years was not necessary. * * * The language in question of the lease at bar means that the demise was for ten years absolutely and for ten additional years in case the lessee so elected. * * * The lease is a present demise of the premises. * * * Inasmuch as the defendant holds the premises for the full term of twenty years by virtue of the original lease, no question as to the application of the Statute of Frauds arises.”

So here, holding a lease for the full term of six years, the plaintiff might demand a conveyance at any time during that time.

The judgments appealed from should be reversed and judgment should be directed for the plaintiff, with costs in all the courts.

HOGAN, CARDOZO, POUND, McLAUGHLIN and CRANE, JJ., concur; HISCOCK, Ch. J., absent.

Judgment accordingly.