Clendinning v. Lindner — 9 Misc. 682

Majority

p. 682

William W. Clendinning, Respondent, v. Richard Lindner, Appellant.

(New York Superior Court—General Term,

October, 1894.)

Headnote

A holding over by a tenant after the expiration of the term is an election to renew the lease, and continues the tenancy for the whole balance of the unexpired term.

Proof of conversations between landlord and tenant, before a holding over took place, as to a proposed surrender, which were not acted upon by the tenant, is not sufficient to sustain a finding of surrender and acceptance.

A landlord owes no duty to a tenant to relet the premises where the latter vacates them before the expiration of his term.

Appeal from judgment entered on verdict of a jury, rendered under direction of the court.

Plaintiff leased to defendant the rear part of the first floor and basement of certain premises for one year from February 1, 1889, with the privilege of renewal for two years longer. Defendant occupied the demised premises until about the middle of February, 1891, when he offered the keys to plaintiff, who refused to accept them, and then left them upon the premises and went abroad. Plaintiff endeavored to sublet the premises on defendant’s account, but was unable to do so, and in December, 1891, elected to take the entire premises himself, and released the defendant from all further claim. This action was brought to recover rent from February 1 to December 1,1891. The defendant testified that in January, 1891, he told the plaintiff that he was going to leave the premises the last of February, and that plaintiff said “ All right.”

A. L. Pincoffs, for appellant.

Kelly & MacRae ( William G. Beecher, of counsel), for respondent.

This action was brought to recover rent of certain premises. The court below directed a verdict for

p. 683

plaintiff, and the defendant appeals from the judgment entered thereon.

The mating of the lease was admitted by the defendant.

The recovery was for a term covered by an alleged renewal which the defendant, in his answer, denies mating.

The proof clearly establishes a holding over by the defendant, and the creation thereby of a liability to the plaintiff for the rent sought to be collected.

The holding over was an election to renew the lease and continued the tenancy for the whole balance of the unexpired time. Elwood v. Forkel, 35 Hun, 202 .

The defendant did not show a surrender, nor is there such a conflict of testimony as to this alleged defense that called for its submission to the jury. The testimony relied upon to establish the alleged surrender consists of conversations between the parties had before the holding over took place.

At the most, the statements thus made by the defendant can only be considered as information to the plaintiff of something-the defendant proposed to do. There is no evidence that lie ever did what he proposed.

The proof will not sustain a finding of surrender and acceptance.

The plaintiff owed the defendant no duty to relet the premises. The rejection of proof tending to show the plaintiff’s, neglect in this regard was not error.

The appellant’s objections to the validity of the judgment not already considered rest upon some alleged breach of a covenant in the lease. The pleadings do not admit any such clause as claimed by the appellant. The lease was not put in evidence on the trial. No proof was offered as to the covenant in question, and there is nothing in the record upon which to base a discussion of the rights of the parties arising from the covenants in the lease.

The judgment is right and should be affirmed, with costs to the respondent. ■

Freedman, J., concurs.

Judgment affirmed, with costs.