It is alleged by the prosecutor that the facts above recited did not bring the case within the jurisdiction of the Justice for the following reasons: 1. That the privilege of terminating the lease was not a term, condition or limitation of the original lease, but a special privilege, reserved to the lessors, of ending the original term."
Thus it is plain that the precise question in issue in this case was before the Court, and that it was necessary for the Court, in order to reach the decision it did, to decide that the quoted provision would constitute a limitation upon the term fixed by the original lease.
The case of Miller v. Levi, 44 N. Y. 490, is also applicable to this case. In that case Miller demised to Levi, reserving the right to sell the demised premises and to limit Levi's term thereon to the expiration of sixty days after notice of sale. The sale and notice specified in the lease was made. It was insisted that the Justice had no jurisdiction of the summary proceedings, because this can only be resorted to where the term of the lease of the lessee "has expired by lapse of time," which it was said was not the fact in that case. The Court said:
"Immediately upon sale by Miller and notice thereof to the tenant the limitation attached to the estate of the latter, without further act on the part of Miller. There then arose a limitation of his term, to wit, its expiration on the first of May following. The act itself, in the lease contemplated, to wit, a sale without notice, created the expiration. Nothing further was necessary.... The 'term' of the lease must therefore be taken to have 'expired' on the first of May, 1864."
I think, therefore, that when the leased property was sold, and the notice of sale given to McGann on October 30th, 1918, the term of McGann under the terms of the lease expired six months thereafter; that the sale and notice constituted a limitation of his term; that the Second District Court of the City of Newark, before which proceedings to remove McGann were instituted May 2nd, 1919, had jurisdiction to hear and determine the matter before it; and that, therefore, the defendant is not guilty of the trespass alleged against him.
Judgment is given, therefore, against the plaintiff and in favor of the defendant.