Opinion
May 7, 1959
Appeal from the Municipal Court of the City of New York, Borough of the Bronx, BERTHA SCHWARTZ, J.
Newman, Aronson Neumann ( Edwin Ostrow of counsel), for appellant.
Tenant appearing in person by Mrs. Richard Angley.
The unauthorized installation of the washing machine and its retention after notice was a violation of a material provision of the lease ( L.H. Estates Co. v. Bartholomew, 9 Misc.2d 116). There was no proof of waiver of the terms of the lease.
The final order should be reversed, with $30 costs, and final order directed for landlord, with costs.
The lease does not prohibit absolutely the installation of a washing machine; it requires only the consent of the landlord in writing to the installation. The trial court's finding, on sufficient evidence, of a waiver necessarily implies oral consent. That is enough to create a valid waiver of the requirement of written consent ( Alcon v. Kinton Realty, 2 A.D.2d 454, 456; Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 387; Adams-Flanigan Co. v. Kling, 198 App. Div. 717, 720, affd. 234 N.Y. 497; Sol Apfel, Inc. v. Kocher, 61 N.Y.S.2d 508, affd. 272 App. Div. 758). Hence, I dissent.
STEUER and TILZER, JJ., concur; HOFSTADTER, J., dissents in memorandum.
Final order reversed, etc.