(concurring). I agree with the conclusion of the court but would prefer to put my concurrence upon other and broader grounds. I would not consider the lease clause upon which defendant relies — the typical clause that the tenant will quit and surrender the premises in good order and condition upon the expiration of the lease — standing alone as the required agreement in writing to terminate occupancy on a date certain under subdivision (g) of section 8 of the Commercial Bent Law (L. 1945, ch. 3, as amd.).
City Bank Farmers Trust Co. v. Rival Shoe Co. (198 Misc. 1002, affd. 279 App. Div. 1059) was a case under the second part of subdivision (g) of section 8 of the Commercial Bent Law, and parts of the lease other than the quit and surrender clause made it perfectly clear that the parties were contracting for a surrender of the premises in a certain contingency.
The difference in wording of the first and second parts of subdivision (g) of section 8 indicates that something even more definite and specific may be required to constitute an agreement to terminate occupancy under the first part than is required under the second part. I would not say that the requirement of a specification of a “ date certain ’ ’, on which occupancy is to be terminated, necessarily dictates the specification of a calendar date, but it at least means that the fixing of a defined time or event for surrender must be a conscious and unequivocal contracting in reference to the kind of surrender allowed under subdivision (g) of section 8.
It is not apparent that the parties entered into such an agreement here and I do not believe the Legislature intended that the mere incorporation in a lease of the usual clause for surrender on termination of the lease would have the effect of the special agreement contemplated by subdivision (g) of section 8.
Cohn, Botein and Babin, JJ., concur in Per Curiam opinion; Peck, P. J., concurs in separate opinion; Cox, J., concurs in result.
Judgment and order reversed, with costs, and judgment is directed in favor of plaintiff. Settle order on notice.