Hartnett v. Korscherak — 59 Misc. 457

Majority

p. 457

John Hartnett, Appellant, v. Edward Korscherak, Respondent.

(Supreme Court, Appellate Term,

June, 1908.)

Headnote

Landlord and tenant: Leases and agreements in general — Requisites and validity—Delivery of lease: Mature of tenancy — Tenancies from year to year and month to month — Creation of tenancy from year to year —After creation not modified by accepting receipt.

Where, after defendant had occupied premises under an oral lease for two years, a written lease for the same term was signed by both parties but was not delivered to defendant, no action for rent is maintainable on the written lease.

The occupation of premises under an oral lease thereof for two years creates a tenancy from year to year; and, where the tenant continues in possession after the first year but moves out before the expiration of the second year, he is liable for the rent for the balance of the year.

The oral lease being established, the fact that the rent receipts signed by the landlord’s agent contained the words “let by the month only” did not affect the relations of the parties already established.

Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of New York, second district, borough of the Bronx. •

Daniel E. Cohalan, for appellant.

J. Wilson Bryant, for respondent.

Action for rent. Defendant entered the premises in the month of June, 1906, plaintiff stating to defendant that he would give him a two years’ lease. Do other terms were mentioned, and defendant entered the premises. Thereafter, a written lease for the same term was signed by defendant and also by plaintiff. Plaintiff delivered it to his real estate agents, who did not deliver it to the defendant.

As there was no delivery of the lease, when signed, to defendant, no action on the written lease can be maintained. Defendant moved out of the premises prior to November 30, 1907, and this action was brought to recover rent for the months of December, 1907, and January, 1908. The parol lease was given for two years from June 1, 190'6. Occupation of the premises was taken under the parol lease and, in such case, the occupation inures as a tenancy from year to year. Reeder v. Sayre, 70 N. Y. 180 .

The tenant, by holding over and continuing after the expiration of the first year, became tenant for another year and. liable to pay the rent until the expiration of that year. Loughran v. Smith, 11 Hun, 314 . Defendant, in his testimony, admitted the parol leasing for two years. This being once established, the fact that afterward the rent receipts signed by the agents of plaintiff contained the words “ let by the month only ” cannot affect the relations already established between plaintiff and defendant.

The action was, therefore, properly brought for rent, and the judgment in favor of the defendant should be reversed.

Present: Gildersleeve, Dayton and Gerard, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Cases cited

Reeder v. Sayre 70 N. Y. 180 N.Y. 1877-06-19 p. 457