Jonas J. Maisel, Respondent, v. Harry Shanholt, Appellant

Jonas J. Maisel, Respondent, v. Harry Shanholt, Appellant. Second Department, December 12, 1919. Landlord and tenant — provision for renewal of lease — equity — when suit for specific performance does not lie. Where a lease in writing gives to the tenant an “ option to renew lease for same term of years ” the tenant may renew without a new lease for an additional term and, hence, cannot maintain a suit in equity for the specific performance of the renewal agreement. Appeal by the defendant, Harry Shanholt, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of September, 1919, granting plaintiff’s motion for judgment on the pleadings, consisting of the complaint and answer, and also from the judgment in favor of the plaintiff entered thereon in said clerk’s office on the 21st day of October, 1919, decreeing specific performance of an agreement for renewal contained in a lease of real property in Borough Park. The lease was made September 21, 1917, for a term from October 15, 1917, to October 15, 1919, “ with option to renew lease for same term of years.” There was inserted a permission that the tenant could assign “ to some other tenant * * * with consent of owner.” In May, 1919, the original lessor had conveyed the property to this defendant. The learned court found that though the complaint had redundant matter, a case for specific performance had been pleaded, and so gave judgment. Morris Spevack, for the appellant. J. L. Weinberg, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: Plaintiff has mistaken his remedy. The option to renew for another two years, if exercised in time, needed no new lease for the additional term. (Orr v. Doubleday, Page & Co., 223 N. Y. 334.) Hence plaintiff pleaded no case for-specific performance, and the judgment and order must be reversed, with costs, and plaintiff’s motion for judgment on the pleadings denied, with ten dollars costs. ' Jenks, P. J., Rich, Putnam, Blackmar and Jaycox, JJ., concurred. Judgment and order reversed, with costs, and plaintiff’s motion for judgment on the pleadings denied, with ten dollars costs.