McMann v. Bloomer — 107 N.Y.S. 882

Majority

p. 882

McMANN v. BLOOMER.

(Supreme Court, Appellate Term.

December 20, 1907.)

Headnote

Landlord and Tenant—Duration oe Term—Holding Over by Tenant.

Where the tenant of an apartment, on the expiration of the lease on-. May 1st, left some of his furniture there for about a week by permission of the janitor, but no authority to grant such permission was shown, there was a holding over, rendering the tenant liable for rent for May.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and-Tenant, § 393.]

Appeal from Municipal Court, Borough of Manhattan, Eleventh. District.

p. 883

Action by Amanda McMann against Harvey N. Bloomer. From a judgment in favor of defendant, plaintiff appeals. Reversed, and new trial ordered.

Argued before GIRDERSREEVE, P.. J., and McCARR and FORD, JJ.

Wesselman & Kraus, for appellant.

Arthur W. Birlcins, for respondent.

If there had been a disputed question of fact here, and it had been determined in favor of the tenant, we should not be inclined to disturb the judgment; but there is no dispute about the facts. The defendant himself swears:

“Q. Where were the things, in the apartment you occupied? A. Yes, sir; a few pieces of furniture. Q. How long were they there after the 1st? A. About four or five days; about 12 pieces of furniture,” etc.

It is true that he swears that he had the permission to leave them from the janitor; but to make such permission available to the defendant the authority to grant same should have been shown, and the record is silent thereon. We cannot see, therefore, but that under the law, which without dispute must be accepted as settled, there was a holding over beyond May 1st, and that the defendant was answerable for that month’s rental, but, under the circumstances, for that month only. The judgment must therefore be reversed, and a new trial ordered.

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