Hammond v. Eckhardt — 30 N.Y. St. Rep. 856

Majority

p. 856

Milton E. Hammond, Resp’t, v. Martin Eckhardt, App’lt.

(New York Common Pleas,

General Term,

Filed April 7, 1890.)

Headnote

1. Lease—Holding over.

A tenant after the termination of the lease may enter on the premises within a reasonable time for the purpose of removing his goods, if he does not exclude the landlord.

2. Same.

Defendant’s lease expired May 1, 1889. He had moved out everything but some broken boards before that time and was unable to move them on account of the procession on May 2d, and the f. ct that the 1st was a legal holiday. Evidence w as given of a conversation between the engineer of the building and an employee of defendant as to furnishing steam, but no authority or ratification of the latter’s action was shown. Held, that whether there was a holding over was a question for the jury.

Appeal from third judicial district court of the city of New York.

G. It. Carrington, for resp’t; A. It. Kling, for app’lt.

This was an action brought by the plaintiff to recover rent for the month of July, 1889, for premises Nos. 148 and 150 Bank street, in the city of New York. The evidence shows that the defendants entered the premises in the year 1888 under a written lease which expired May 1,1889, at an annual rent of $1,800. The plaintiff seeks to recover rent for the year commencing the 1st of May, 1889, on the ground that there was a holding over which made defendant liable for the rent since the 1st of May, The answer was a general denial. Upon the trial judgment was directed for the plaintiff for the July rent.

The main question in dispute was as to the surrender and acceptance of the premises. This question was one of fact and should have been submitted to the jury. It is shown by defendants’ testimony that all machinery had been taken from the premises before the 1st of May, 1889, and that the 30th of April and the 1st of May were legal holidays, and that on the 2d of May, by reason of the civic procession, they were unable to cross Broadway with their trucks, but that at that time there only remained some broken boards upon the premises in question. The following questions were put to the landlord:

“ Q. Did you not know that they moved out all the machinery they had in your building in the month of April? A. No.

“ Q. Did you not see them moving it out of your building in April? A. I think they did.”

The tenant, after the termination of the léase, had still the right to enter upon the premises within a reasonable time for the purpose of removing his goods and utensils, which he may do if he does not exclude the landlord. The judge admitted evidence to show that after the 1st of May the engineer of the building had a conversation with one of the defendants’ employees in reference to furnishing steam, but it does not appear that such employee had authority to bind the defendants or that they ratified his action. Whether or not there was a holding over was clearly a question for the jury upon the evidence, and it was error to order judgment for the plaintiff.

The judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.

Bischoff, J., concurs.