#### Abe Bruder, Respondent, *v.*The Crafts and D’Amora Company, Appellant.

(Supreme Court, Appellate Term, First Department,

January, 1913.)

Lease — reservation of right to sell demised premises.

A provision in a lease, that it shall terminate on the landlord’s giving a sixty days’ written notice to the tenant of a *tona fide*sale of the premises, is a valid limitation of the terms of the lease.

*89Where a landlord having reserved the right to cancel a lease for years, on giving the tenant sixty days’ written notice of a *bona fide*sale of the premises, conveys the same and assigns the lease to the tenant, the purpose of the right to cancel the lease ceases, and the giving of a sixty days’ written notice by the grantee of the premises is ineffectual to terminate the lease.

Appeal by the tenant from a final order in summary proceedings of the Municipal Court of the city of ¡New York, borough of Manhattan, fifth district, entered upon a verdict rendered by direction of the court in favor of the landlord and from an order denying a motion for a new trial.

Marcus E. Joffe, for appellant.

Henry O. Neuwirth (John J. Weiss and F. J. Groehl, of counsel), for respondent.

Lehman, J.

In September, 1909, one William H. Palmer, Jr., leased certain premises to Louis H. Craft and Matthew ¡R. D’Amora for a term of years. By mesne assignments the title to the premises has been transferred to the present landlord, and the lease has been assigned to the present tenant. The lease contains the following clause: “ In case the landlord makes a bona fide sale of the premises above described during the term of this lease it is mutually agreed that he shall have the right to cancel this lease upon sixty days written notice to the Tenants, and he agrees that in this event he will return to the Tenants the rent for the last month, of the term which as above stated is to be paid upon the execution of this lease, and also that he will pay such amount as the Tenants may have expended upon structural improvements to the building; provided, however, that the Landlord shall not be required to refund to the Tenants the cost of any improvements for which the contracts for making which were not approved by the Landlord in writing before said improvements were made.”

The present landlord has made a *bona fide*sale of the *90premises and has given the tenants sixty days’ notice of his desire to cancel the lease, and the question presented by this appeal is whether these acts have caused the termination of the lease.

It is well established that a provision in a lease that it shall terminate upon sixty days’ notice of a *bona fide*sale is a valid limitation of the term of the lease. It is also established that the covenant to pay for repairs upon such termination is a covenant running with the land and binding the heirs and assigns of the parties. Douglaston Realty Co. v. Hess, 124 App. Div. 508. These considerations, however, do not dispose of the real question in the case, viz., whether the parties intended that the term should be limited upon a *bona fide*sale and notice by the original landlord or upon a *bona fide*sale by the original landlord, his heirs and assigns.

. There can be no serious doubt but that the parties had a right to provide that the term of the lease should be limited upon either contingency, and, if they have evinced the intention that the right to terminate shall be exercised by the landlord or his heirs and assigns, that intention can be given effect even if they have not used the technical terms most appropriate to the situation. Adler v. Lowenstein, 52 Misc. Rep. 556. In this case, however, the parties have used no term that shows any intent to give such a privilege to any person other than the original landlord, nor can I find in the entire instrument, construed in the light of the surrounding circumstances, any intent to give such right to the landlord’s assigns. The original landlord was interested in preserving his right to make a sale free from the incumbrance of "any lease and has provided in the lease that upon a sale he shall have the right to terminate the lease. When he sold the premises and his immediate assignee accepted them subject to the lease the purpose of this clause had ceased. It is true that the new landlord might prefer to have the premises u i cumbered only by a lease which he also could terminate, but in the absence of appropriate words giving him such a right I fail to see how we can consider that the right reserved to the original landlord passed also to his assignee.

*91Judgment and final order should be reversed with costs and petition dismissed with costs.

Page, J., concurs; Hotchkiss, J., taking no part.

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