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Bleistift v. Diener

129 N.Y.S. 73 Court N.Y. App. Term Decision date 1911-05-04 English

Delivered by LEHMAN, J.

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p. 73
BLEISTIFT v. DIENER et al.
(Supreme Court, Appellate Term.
May 4, 1911.)

Headnote

1. Landlord and Tenant (§ 114[1] )—Holding Over After Term—Rights of-Landlord.
Where a tenant under a demise for a year or more holds over after the end of the term without a new agreement with the landlord, the-landlord may elect to treat him either as a tenant from year to year, and in all other respects as holding upon the terms of the original lease, or may treat him as a trespasser, but cannot treat him as both.
[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §■ 379; Dec. Dig. § 114.[1] ]
2. Landlord and Tenant (§ 114[1] )—Holding Over After Term.
In such a case, where the tenants held over for about half a month, and a few days thereafter the landlord sent a man to their new place of business to demand the keys, which they delivered up, the landlord made a conclusive election not to treat them as tenants under an im
p. 74
plied lease for a year, and at most would be entitled to recover for use and occupation.
[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 379; Dec. Dig. § 114.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Sixth District.
Action by Abraham I. Bleistift against Samuel Diener and others. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.
Reversed, and new trial granted.
Argued before SEABURY, LEHMAN, and GERARD, JJ.
Barnett E. Kopelman, for appellants.
Rosansky & Goldberg (I. Gainsburg, of counsel), for respondent.

[1] Plaintiff has recovered a judgment for rent for the month of May of premises occupied by the defendants. It appears from the plaintiff’s testimony that the defendants occupied the premises under a written lease, which expired on May 1st. Thereafter they held over, and used and occupied the premises until about the middle of the month. About May 18th the plaintiff sent a man to defendants’ new place of business to demand the keys, and the defendants delivered up the keys.

“The law is well settled that, when a tenant under a demise for a year or more holds over after the end of his term without any new agreement with the landlord, he may be treated as a tenant from year to year, and in all other respects as holding upon the terms of the original lease. The landlord has an election to treat him either as a trespasser or as a tenant, and it is for the former to determine how he will treat him. * * * But such holding over puts the landlord to Ms election. He must either accept' the tenant as a tenant for a new term, or treat him as a trespasser. He cannot do both.” Goldberg v. Mittler, 23 Misc. Rep. 116 , 50 N. Y. Supp. 733 .

[2] In this case it seems to me that when the plaintiff demanded the keys, and received and retained them, he made a conclusive election not to treat the defendants as tenants under an implied lease for a year. At most he is entitled to recover for use and occupation, but he cannot claim that the relation of landlord and tenant continued after May 1st.

Judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.

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