194 A.D. 433 | N.Y. App. Div. | 1920
The landlord was the lessee of the entire premises, occupying a portion thereof for the transaction of its business, and sublet another portion to the tenant for a term of five years commencing on the 14th day of October, 1913, at a yearly rental of $6,500. On February 7, 1917, the landlord sublet to the same tenant an additional portion of the premises for a term commencing on March 15,1917, and ending on October
The tenant paid rent for the month ending November fourteenth at the rate of $23,500. The landlord had been negotiating with the owner for a lease with a long term. The tenant succeeded in getting such a lease from the owner, and under the provision of the old lease the owner on October 29, 1919, notified the landlord that his lease was canceled effective January 31, 1920. On November 8, 1919, the landlord wrote the defendant: “ This is to inform you that on and after November 15th, 1919, the rental for the premises you now occupy, 448 Fifth Avenue, as a monthly tenant, will be at the rate of Seven thousand five hundred $7,500) Dollars per month. Please let us know on or before the 12th day of November; 1919, of your decision in the matter so that we may make arrangements accordingly.”
In the Municipal Court the landlord contended that on or about October 14, 1918, the time of the expiration of the five-year term, an express agreement was made that the tenant should remain in the premises as a monthly tenant. The
The learned Appellate Term (111 Misc. Rep. 372), adopting the fact that there was no express agreement as to a monthly tenancy, held that the situation of the parties on October 14, 1919, was that of an intending lessor and lessee who undertake to create orally a tenancy for a year, which they were prevented from doing (at that time) by the special Statute of Frauds relating to New York city (Laws of 1918, chap. 303, amdg. Real Prop. Law, § 232).
It is not to be assumed that either party intended to forego and relinquish, the benefit and protection of these covenants and agreements, but rather that they were silent as to them for the reason that if the tenant held over after the expiration of his term and the landlord elected to accept him as a tenant the law would imply a term for a year subject to all the covenants and agreements of the former lease except as changed by the increase in rent.
It is true that the tenant by remaining in possession does not thereby secure the right to a new term. He is a trespasser, and his right only comes into existence if the landlord elects to allow him to remain and accepts him as a tenant. When, however, the landlord does accept him, his election is conclusive upon both parties; neither can then claim that the tenant is in possession as a trespasser, for the law implies a lease for a new term of one year, subject to the covenants and conditions of his former lease except as changed. The tenant by remaining in possession has become hable for the increased rent by his implied consent; the landlord having accepted the rent and permitted the tenant to remain in possession has recognized his right as a tenant. From these conditions the law implies the term, covenants and conditions of the lease. Therefore, this being an agreement by implication of the law, chapter 303 of the Laws of 1918 does not apply. (Souhami v. Brownstone, 189 App. Div. 1.)
The determination of the Appellate Term should, therefore,
Clarke, P. J., Dowling., Smith and Greenbaum, JJ., concur.
Determination reversed and final order of Municipal Court affirmed, with costs to appellant in this court and in the Appellate Term.
Since amd. by Laws of 1920, chap. 130.— [Rep.