Laimbeer v. Tailer — 21 N.Y. St. Rep. 380

Majority

p. 380

William E. Laimbeer, App’lt, v. Robert W. Tailer et al., as Executors of Mary Bradhurst, dec’d, Resp’ts.

(Supreme Court, General Term, First Department,

Filed January 28, 1889).

Headnote

Landlord and tenant—When term op tenant holding over expires.

Where a party rents premises by ah oral agreement for thfe term of one year from the first day of November, 1871, and thereafter continues to occupy them until the first day of November, 1885, when 'her occupation ceased, withotit any further express agreement of any kind: Held that by holding over the law implied a contract on her part each year to renew the tenancy on the terms of the first letting, and that her tenancy expired on the first day of November.

Appeal from a judgment rejecting the claim of . the plaintiff and confirming the report of the referee, to whom said claim was referred under the statute as to claims against the estates of decedents.

George W Van Siclen, for app’lt; E. Bitzema De Grove, for respt’s.

In August or September, 1871, Mrs. Mary Bradhurst, the defendant’s testatrix, by an oral agreement, hired a stable in the city of New York from Mr. A.

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able quarterly. She entered into possession of the premises, and continued to occupy them without any further-express agreement of any kind, until some time between August and November, 1885, when her occupation ceased. In March, 1875, Mrs. Bradhurst being in possession, the plaintiff became the owner of the stable, and after that time he received the rent therefor from Mrs. Bradhurst at the rate of $1,200 a year, or $300 a quarter, until November 1,1878,, and after that date at the rate of $1,082 a year, or $270 a quarter.

Although as already stated, Mrs. Bradhurst abandoned the occupatiqn of the stable before November 1, 1885, she paid the rent up to that date. The appellant, however, insists that her tenancy did not expire until May 1, 1886, and has put in a claim against her estate for the additional rent covering this period, which is the subject-matter of the present litigation.

The question upon which the determination of this appeal depends is whether the lease to the respondent expired upon the first day of November or the first day of May. We think the referee correctly decided that it expired on the first day of November.

The Revised Statutes provide that agreements for the occupation of lands or tenements in the city of New York, “which shall not particularly specify the duration of such occupation shall be deemed valid until the first day of May next after the possession under such agreement shall Commence, and the rent under such agreement shall be payable at the usual quarter days for the payment of rent in such, city, unless otherwise expressed in the agreement.” 3 R. S., 7th ed. 2200.

By the original lease between Mr. Laimbeer and Mrs. Bradhurst, it was particularly specified that the tenant’s occupation should extend for one year from November 1, 1871.

Thereafter she held over, and the law implied a contract on her part to renew the tenancy for a year more on the terms of the first letting. Laughran v. Smith, 75 N. Y. 205 Subsequently she continued to hold over in the same way year after year, and as she was still in possession as tenant when the first day of November, 1884, had passed, the law then implied in like manner an agreement in her behalt that her occupation should continue until November 1, 1885, when she gave up the premises.

The contract which thus arose by implication of law specified the duration of the tenant’s occupation just as particularly as the original lease. Hence it did not fall within the scope of the provision of the Revised Statutes, which has been cited, relative to agreements for the occupation of lands and tenements in the city of New York, which applies by its terms solely to agreements wherein.

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there, is no particular specification of the duration of the term.' It is only such agreements that are declared to be valid until the first day of May next after possession thereunder begins.

We think the statute relied upon has no application to the facts here, and that the case was properly decided below.

Van Brunt and Daniels, JJ., concur.

Cases cited

Laughran v. Smith 75 N. Y. 205 N.Y. 1878-11-12 p. 381