McInerney v. Brown — 136 A.D. 752

Majority

p. 752

Charles A. McInerney, Appellant, v. Louis Brown, Respondent.

Second Department,

March 4, 1910.

Headnote

Landlord and tenant — oral lease —unenforcible option for renewal.

Although an oral lease for the period of three months included a further unenforcible agreement by the landlord to renew the lease for three years at its expiration, there was at least a legal renting for three months and the landlord ■ : may recover the rent due..

p. 753

Appeal by the plaintiff, Charles A. Mclnerney, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendant, rendered on the 30th day of September, 1909, dismissing the complaint.

Jesse Fuller, Jr., for the appellant.

JVathan Schwartz, for the respondent.

The action was brought to recover rent under an alleged oral agreement. It was agreed that the lessee should have the option to renew, the lease at its expiration for the period of three years, and that a written lease should be executed to contain that stipulation. Mo written agreenient was executed, and because of this the municipal justice dismissed the complaint at the close of plaintiff’s case. The evidence of the plaintiff shows the-oral letting to have been for the period of three months, and that a payment was made at the time on account of the rent to become due. This constituted a legal renting, and cannot be influenced by the fact that the plaintiff made a further unenforcible agreement with the defendant.

The judgment of the Municipal Court must be reversed and a new trial ordered costs to abide the event.

Jenks, Burr, Thomas and Carr, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.