Salomon v. Weisberg — 29 Misc. 650

Majority

p. 650

Rudolph G. Salomon, Respondent, v. Sarah Weisberg, Appellant

(Supreme Court, Appellate Term,

November, 1899.)

Headnote

Lease — Words expressing a mere agreement to make a lease in the future.

Where a landlord seeks to dispossess a tenant for holding over the term, a petition of the tenant, which alleges that the landlord

p. 651

“ promised and agreed to and with said tenant to let ” and that the tenant “ promised and agreed to and with such landlord ” to take the premises for another year, does not present the defense of a right of possession in the tenant, as the said allegations do not set up a lease but only an agreement for a lease.

Appeal from a final order in summary proceedings made in the Municipal Court of the City of New York, sixth district, borough of Manhattan, awarding possession of the premises to the landlord.

Blumenstiel & Hirsch, for appellant.

Manheim & Manheim, for respondent.

This proceeding was instituted to dispossess the tenant for holding over after the 1st day of May, 1899, the date of the expiration of his term.

Answering the petition the tenant alleged that “ on or about the 17th day of April, 1899, the landlord herein promised and agreed to and with said tenant to let to such tenant, and said tenant promised and agreed to and with such landlord, to hire from said landlord the premises mentioned in the petition for the term of one year from the 1st day of May, 1899.” * * * On motion this plea was overruled as not constituting a defense, and possession awarded to the landlord. This disposition was proper. It is quite apparent that the answer sets out, not a lease, but a mere agreement for a lease. It is elementary, that to create a letting requires words of present demise. McAdam Landl. & Ten. (2d ed.) 61. The words in the answer expressed simply a promise or agreement to let and hire in the future. Besort is often had to the entire contract to determine whether the parties intended a lease or an agreement for a lease, and, pursuant to that rule of construction, language like that set out in the answer has been held to be equivalent to a declaration of present hiring. Hurlbut v. Post, 1 Bosw. 28 . But when, as in the case at bar, nothing further is pleaded from which the intent of the parties can be gathered, we must construe the words literally. Applying such construction, the tenant’s plea amounted to nothing more than an agreement for a lease. As the latter conveys no estate

p. 652

in lands or tenements, the tenant did not by the language used in his answer assert a right to possession. It was, therefore, properly disregarded as not raising an issue. Hence the order must be affirmed.

Freedman, P. J., and MacLean, J., concur.

Order affirmed, with costs to respondent.

Cases cited

Hurlbut v. Post 1 Bosw. 28 N.Y. Super. Ct. 1857-04-11 p. 651