The issue here is whether the Manufacturers Trust Company, as purchaser of the property, was authorized, under paragraph 18 of the lease, to give notice of cancellation in the absence of a resale of the property by it. Paragraph 18 provides: "That if the Landlord should sell said premises, prior to the expiration of this lease and the purchaser thereof desires possession of said premises, then and in that event, the Tenant will cancel this lease and surrender possession of said premises, and will execute an instrument to effect a proper cancellation of this lease and surrender of the demised premises upon receiving 60 days written notice of the cancellation of this lease, by registered mail addressed to the Tenant to the premises herein demised, and the security deposited with the Landlord as aforementioned shall be returned to the Tenant." (Italics supplied.)
On August 1, 1957 respondent Morlee entered into a five-year lease with the Ave. D. Building Co., Inc., the then landlord of the leased premises now under consideration. In addition to the
The Supreme Court, concluding that this exact issue was decided by Matter of Furio v. Smith (272 App. Div. 941), found itself constrained to dismiss the dispossess proceeding and grant judgment in Morlee's favor. The Appellate Division affirmed on the authority of 112 East 36th St. Holding Corp. v. Daffos (273 App. Div. 447, affd. 298 N.Y. 763) and Matter of Furio v. Smith (supra).
We do not think that the rationale of Daffos supports the decision below, and believe that the reasoning attributed to the cases cited in Furio should not be followed.
It is axiomatic that a contract is to be interpreted so as to give effect to the intention of the parties as expressed in the unequivocal language employed (Green v. Doniger, 300 N.Y. 238; Hartigan v. Casualty Co. of America, 227 N.Y. 175). The courts may not by construction add or excise terms, nor distort the meaning of those used and thereby "make a new contract for the parties under the guise of interpreting the writing."
Since the lease itself does not indicate who shall give notice, it seems only logical that the parties would intend that the purchaser be allowed to perform the required task (see Scheele v. Waldman, 136 App. Div. 679). It cannot be read to require the landlord to terminate the lease, and thereby part with a tenant before the landlord is assured that title will close. In any event we should not imply a restriction which the parties chose not to insert in the contract. (Raner v. Goldberg, 244 N.Y. 438, 442.)
Moreover, it is our opinion that the cases cited to substantiate the rationale of the Furio case (supra) are distinguishable either because they involve the construction of cancellation clauses which specifically identify the person to give notice, e.g., the landlord, lessor, etc., or because the purchaser waived his right to give notice by assuming the posture of the landlord (e.g., by waiting an unreasonable time, or accepting rent before giving notice). If there is an attornment, and the purchaser acknowledges the tenancy, certainly he would waive whatever rights he may have had to give notice. This type waiver was precise ground for our affirmance of the Appellate Division in the Daffos case (supra). (See Basiliko Inv. Corp. v. United Cigar-Whelan Stores Corp., 168 F.2d 567.)
In the case at bar, however, the Bank, in our opinion, gave timely notice and did nothing inconsistent with its election as purchaser. Three weeks after acquiring title, and prior to the collection of any rent from Morlee, the Bank duly notified Morlee.
Accordingly, the judgment and order should be reversed, with costs in all courts, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein.