Magner v. Barrett — 139 A.D. 172

Majority

p. 172

Thomas F. Magner, Respondent, v. William M. Barrett, as President of the Adams Express Company, Appellant.

Second Department,

June 17, 1910.

Headnote

Landlord and tenant—holding over — evidence — new term. — election of landlord.

Neither the fact that items of personal property, are left on premises by the ten- • ant nor that the key was not delivered to the landlord is conclusive evidence of ^ a holding over. -

But where it further appears that the manner of the tenant’s possession continued as it had been for several months before and that it did not act with prompt- ■ ness when notified of the holding over, the tenant becomes liable for a new term at the election of the landlord.

Appeal- by, the defendant, William M. Barrett, as president of the Adams Express Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 13tli day of December., 1909.

Arthur W. Clement [Charles Burlingham with him on the brief], for the appellant.

Thomas F. Magner, respondent, in person. . -

The plaintiff has judgment against the defendant in an action to . recover rent for the months of October, November and December, 1909, for the ground floor of premises at 118 Lee avenue, Brooklyn, on the.ground that the defendant had held over and remained in possession of said premises after the expiration of its written lease. The defendant appeals.

The defendant urges that it. did not hold over and that it is not liable to the plaintiff for rent, but we are of the opinion that the evidence presented made the question a mixed one of law and fact, and that it cannot be said as a matter of law that the defendant did not hold over and become liable for the rent., It is true, of course, - that the defendant told the pláintiff in May or June that it would not require the premises after its lease expired in October, and asked to be released from the lease on the payment of $100, but this request was not granted' and the defendant remained in posses

p. 173

sion, without any material change in conditions as they had prevailed for several months, until the twenty-third day of October, and we are persuaded that .the evidence was sufficient to establish a holding over, hi either the fact that some items of personal property were left upon the premises nor that the key was not delivered to the plaintiff is conclusive evidence of a holding over, but these facts, in connection with the facts which were brought out in the evidence showing that there was practically no change in the manner of. the defendant’s possession for a period of several months, and that the defendant did not act with promptness even when it was notified of the holding over, shows a disregard of the plaintiff’s rights which justified holding that the defendant had become liable for the new term at the election of the plaintiff.

The' suggestion that the plaintiff has accepted the surrender of the premises by leasing them to a third party without the defendant’s acquiescence is met by the fact that it is in evidence that the defendant agreed to such a leasing on its behalf, and by the further fact that it does not appear that the plaintiff has leased the premises.

The judgment appealed from should be affirmed, with costs.

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

Judgment of the Municipal Court affirmed, with costs.