The action is to recover three months’ rent under a twenty-one-year lease. Defendant tenant relies on a notice of cancellation conditioned on its inability to obtain possession of the premises from the statutory tenant within a year. Its proof showed that it could have obtained possession if only it had applied for a final warrant from the Municipal Court during a three-week period immediately preceding the giving of notice of cancellation. Its excuse for not doing so is that it was not aware that the court had made an order denying a motion made and vacating a stay obtained by the statutory tenant. It did not make inquiry because it assumed that the Justice of the court, who was on vacation, would not decide the case until argument, as requested by the statutory tenant, had been had. Whatever moral excuse this may provide defendant, if it does, this cannot cut down the rights of plaintiff landlord, who was not a party to the possessory proceeding against the statutory tenant, and had a right to rely on ' tenant taking every step and availing itself of every precaution in procuring the removal of the statutory tenant. In exercising its right to cancel and destroy a twenty-one-year obligation, it had to do more than rely on reasonable inference, when a check at the office of a local court on the date of cancellation would have revealed that the right to cancel did not exist. Any other, view would encourage one in a status like that of defendant to drag his heels in the performance of an obligation once he had lost interest in obtaining possession of the premises. As a matter of fact, in the instant case it is patent that the statutory tenant in his resistance to dispossession was quite at the end of his tether, no matter what stay he desperately obtained on ex parte application.
We note that defendant does not face a twenty-one-year obligation to pay rent without consideration. He may either use the premises for the purposes he originally sought them, or he may sublet them. The premises are still occupied by the statutory tenant, who for the period of this litigation has had no willing landlord to whom to pay rent.
The determination appealed from should be affirmed, with costs.