Gray v. Kaufman Dairy & Ice Cream Co. — 35 N.Y.S. 9

Majority

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(89 Hun, 144.)

GRAY v. KAUFMAN DAIRY & ICE CREAM CO.

(Supreme Court, General Term, Second Department.

July 26, 1895.)

Headnote

Landlord and Tenant—Surrender or Premises—Question for Jury.

In an action for rent, where the evidence was that, immediately after defendant sent the keys of the premises to plaintiff, the latter notified defendant that he did not accept the surrender, and intended to hold him for the rent, and would rent the premises for his account, to which defendant made no reply, the question whether there was a surrender should be submitted to the jury.

Appeal from circuit court, Kings county.

Action by John G-ray against the Kaufman Dairy & Ice Cream Company to recover $400 rent alleged to be due to plaintiff from defendant. A verdict was directed by the court in favor of plain

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tiff for $214.30, and from the judgment entéred thereon, and from an order denying a motion to set aside the verdict and for a new trial, plaintiff appeals. Reversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Miller & Miller, for appellant.

M. Linn Bruce, for respondent.

The only doubt in my mind about the, disposition of this case by the learned trial judge arises on plaintiff’s request “to go to the jury on the question whether there was a surrender as matter of fact.” The testimony tended to show that defendant sent plaintiff the keys of the premises about October 31, 1893, and that they were received by plaintiff November 2, 1893. On the next day, November 3, 1893, plaintiff wrote defendant that he did not accept the surrender; that he intended to hold defendant for the rent; and that he should rent the premises for defendant’s account, and hold him for the damages that might be sustained. With this testimony before us, I do not see why the jury would not have been justified in finding, from defendant’s silence, that it assents to the terms thus prescribed, which were that plaintiff should let the premises for its account. Such a finding would have been warranted by the authority of Underhill v. Collins, 132 N. Y. 272 , 30 N. E. 576 . If the jury had so found, then, by the same authority, there would have been an implied agreement between the parties that plaintiff might relet the premises for defendant’s account; and that would have been sufficient to justify a finding that there was no acceptance of the surrender,—in other words, that there was no surrender. I have therefore, though with much hesitation, reached the conclusion that a new trial should be ordered, with costs of this appeal to the plaintiff if it shall be found that there was no surrender, and to the defendant if it shall be found that there was a surrender. All concur.