#### The Fifth Avenue Building Company, Respondent, *v.*Gregory Potaras, Appellant.

(Supreme Court, Appellate Term, First Department,

November, 1912.)

Landlord and tenant —' lease — waiver in lease — expiration, on tenant’s failure to maintain a first-class flower stand.

Where a lease provided that at the option of the landlord it should expire on the tenant’s failure to maintain a first-olass flower stand, and to keep the premises occupied by him, and the adjoining pavement, free of refuse, the mere breach of such condition does not give the landlord the right to institute summary proceedings on the ground that the tenant held over after the termination of his estate.

A waiver in a written lease of the tenant’s right to notice of the institution of legal proceedings to dispossess him cannot be interpreted to change the character of his estate, and to convert an estate on condition into one on limitation.

Appeal by a tenant from a final order of the Municipal Court of the city of Hew York, borough of Manhattan, ninth district.

Elias Rosenthal, for appellant.

Louis F. Doyle, for respondent.

*151Seabury, J.

Appeal by a tenant from a final order -rendered in favor of a landlord in summary proceedings. This summary proceeding was instituted by the landlord to remove the tenant, on the ground that the tenant held over after the termination of his estate. The lease, under which the tenant entered into possession, provided that the tenant should “ maintain a first class flower stand, and keep the place occupied by him and the adj oining pavement clean and free from refuse, and in case of his failure to do so, this lease shall, at the option of the landlord, expire and come to an end.” It is alleged in the petition that this covenant of the lease was violated by the tenant. The mere breach of the condition contained in the lease did not give the landlord the right to institute these proceedings. The tenant cannot be said to have held over until his estate terminated. It is true that the estate was such that it might be terminated at the option of the landlord, but neither the allegations of the petition nor the proof established that the landlord ever exercised this option. The failure of the landlord to exercise the option left the estate of the tenant unterminated, and consequently the tenant was not a hold-over, and the landlord had no right to institute the present proceedings. Janes v. Paddell, 67 Misc. Rep. 420. As the estate of the tenant was not terminated before the commencement of these proceedings, it is unnecessary to determine as to the manner in which the landlord should, under the lease, have exercised his option, provided he elected so to do. The provisions of the lease upon which the appellant relies, whereby the tenant waives the right to notice of the institution of legal proceedings, cannot be interpreted to change the character of the tenant’s estate, and to convert an estate upon condition into an estate upon limitation.

It follows that the order appealed from should be reversed with costs, and the petition dismissed with costs.

Guy and Bijub, JJ., concur.

Judgment reversed, with costs, and petition dismissed, with costs.