134 N.Y.S. 611 | N.Y. App. Term. | 1912
The plaintiff sues, as landlord, to recover rent for the months of July and August, 1911, for offices- occupied by defendant as an attorney and counsellor-at law. The defendant had for several years prior to May, 1911, been a tenant in, plaintiff’s building, and at the time of the making of the lease in question was occupying room 504 in said building as a monthly tenant. Sometime prior to May 1, 1911, he leased from plaintiff, for the term of one year, beginning May 1, 1911, rooms 505 and 506 immediately adjoining room 504. There was ho entrance from the hallway into room 505. At the time the lease was made, room 506 was occupied by a tenant of plaintiff named Shapiro, an attorney at law. On the beginning of the term of his lease defendant arranged with Shapiro-, with the knowledge and consent of the landlord, tb continue, as a sub-tenant of the defendant, to occupy room 506; and Shapiro continued on as a sub-tenant-, retaining the key to room 506, which' had previously been given him by the plaintiff. Defendant testified on the trial that, at the time of the making of the new lease, plaintiff’s representative, with whom he arranged for the making of the new lease, and who brought him the
The learned trial justice properly held that’the alleged oral agreement to permit him the use of rooom 504 as an entrance, made previous to the execution of the written lease, was merged in the written lease, and' a breach of said agreement would not constitute an eviction; but the evidence as to the making of such an agreement is material on the point whether the landlord prior to October, 1911, ever gave to the defendant,, as tenant, such full possession of the premises as he would be entitled to under his lease. “ When a man grants a thing to be used for hire he grants it with all such appurtenances and accompaniments as usually and properly belong to it, and are necessary to enable the hirer to have that use and enjoyment of the thing leased for which the hire is agreed to be paid.” 1 McAdam Landl. & Ten. (4th ed.), § 83, p. 291. A key is the symbol of possession. The furnishing a tenant with a key to leased premises is a customary incident to the giving of possession, just as the surrender of the key by the tenant is evidence of an intent on his part to surrender possession.
Though the landlord was within his rights in subsequently depriving the defendant of the use of room 504 as an entrance. it became his duty, in so depriving the defendant of that means of access, to place the defendant in full possession of the leased premises by furnishing him with a key thereto, the defendant’s possession up to that time having been a limited possession, dependent upon his right of access through room 504.
The evidence introduced by the defendant establishes fully the’defense of partial eviction on the part of the landlord during the months of July and August, 1911. The legal
The direction of a verdict in favor of plaintiff was, therefore, error, and the judgment must be reversed, and,a new trial ordered, with costs to the appellant to abide the event.
Lehman and Bijur, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.