80 A.D. 333 | N.Y. App. Div. | 1903
Lead Opinion
The facts of this case, which are undisputed or which appear to be established by a preponderance of evidence, are as follows: The plaintiff sues upon a written lease executed by the defendant, under which the latter entered into possession of certain premises for a term of one year from September 1, 1901. The facts alleged in the complaint are admitted and the defendant has established that on or about the 5th day of April, 1902, on the occasion of a visit of the plaintiff’s agent for the purpose of collecting the rent due for that month under the terms of the lease, the defendant’s wife
A long line of authorities supports the rule that “ a surrender is implied, and so effected by operation of law within the statute,
The plaintiff, knowing the intention of the defendant to leave, and having assented to his leaving, and while the premises were still in the possession of the defendant, who had paid his rent for the month of April, entered upon the property and posted a notice that the same was for rent, thus by an affirmative act assuming dominion over the premises, and must be deemed to have accepted
Reading Underhill v. Collins (132 N. Y. 269) in the light of the subsequent discussion in Gray v. Kaufman Dairy & Ice Cream Co. (9 App. Div. 115) and the same case in 162 New York, 388, we are persuaded that the defendant, under these facts, is not liable for the rent after the month for which the rent was paid in April, 1902, because the relation of landlord and tenant came to an end at that time.
In the Gray Case (162 N. Y. 395) it was conceded that the defendant’s offer of surrender was declined by the plaintiff, and that after the defendant’s abandonment of the premises the plaintiff relet the same in his own name to one Mary Ann Keogh for a term of three years and five months, and the court say: “ Such a situation, unqualified by other conditions, would create a surrender by operation of law.” In the case at bar the plaintiff accepted the offer of surrender, made use of the reserved power to post a notice of to let during the last ninety days of the term, and she cannot, because she has failed to find a tenant, collect the rent from this defendant during the remainder of the term for which thé lease was made.
The judgment should be reversed.
Goodrich, P. J., and Bartlett, J., concurred; Hirschberg, J., read for affirmance.
2 B. S. 134, § 6, now contained in Laws of 1896, chap. 547, § 307.— [Rep.
Dissenting Opinion
I cannot concur in the decision which the court is about to make in this case. When an action is tried upon conflicting evidence
Under these circumstances the conclusion reached on appeal should be guided by what Presiding Justice Goodrich said in Richards v. Schiff (44 App. Div. 618), viz.: “ Possibly we might have concluded that the plaintiff had not the preponderance of evidence, if we were sitting as a court of first instance, but, as an appellate court, we are not controlled by such reason. We can only examine the record to ascertain whether there is sufficient evidence to sustain the findings, in the hypothesis that the trial court gave greater credence to the testimony of the witnesses for the prevailing party than it gave to his opponent.” Or, as was said by Chief Judge Roger, in Baird v. Mayor (96 N. Y. 567, 576): “In reviewing the determination of a trial court upon questions of fact, an appellate tribunal is not warranted in reversing upon the sole ground that, in its opinion, the trial court should have reached a different conclusion upon conflicting evidence. * * * To justify a reversal it must appear that such findings were against the weight of evidence, or that the proofs so clearly preponderated in favor of a contrary result that it can be said with a reasonable degree of cer
The fact that a “ to let ” notice was posted by the landlord is of no prejudicial significance. This was not only authorized by the express terms of the lease, but was within the landlord’s power in the absence of such a reservation, upon the declaration of the tenant’s purpose to vacate the premises and to abandon the property. (Underhill v. Collins, 132 N. Y. 269.) Nor was the landlord required to return the key. (Thomas v. Nelson, 69 N. Y. 118.)
The case appears to have been carefully tried without error, and to have been carefully considered. The magistrate, Hon. William J. Lynch, has written an excellent opinion, which I adopt, as follows:
“ Lynch, J. This is an action to recover rent for the month of Hay. The defense is based solely on a voluntary surrender of the premises, and an acceptance thereof by the landlord. (See Answer.) The late Justice HcAdam, in his treatise on Landlord and Tenant, discusses at length the question as to what constitutes a surrender and acceptance within the meaning of the law (see HcAdam’s Landlord and Tenant [3d ed.], 1263-1266
“ Where there is no agreement in the lease requiring the landlord to repair, necessity for repairs will not justify the tenant in abandoning the premises. (See McAdam L. & T. [3d ed.] 1282.
“ On the question as to the character of the evidence necessary to be given to constitute an acceptance of a surrender, see the following cases: Requa v. Domestic Pub. Co. (11 Misc. Rep. 323); Kelly v. Noxon (64 Hun, 281, 283); Wallace v. Dinniny (11 Misc. Rep. 317, 319).
“ The evidence here on the part of the defendant does not bring the case within the requirements of these authorities.
“ So it has also been held that where a tenant abandons the premises and sends the keys to the landlord, the landlord is not bound to tender a return of them, and a retention thereof does not amount to a surrender and acceptance. (See Doolittle v. Selkirk, 7 Misc. Rep. 722; Thomas v. Nelson, 69 N. Y. 121.)
“ It has also been held that a landlord who, upon refusing to accept a surrender, notified the tenant that he would hold him for the rent
“ if or does the fact that a ‘ to-let ’ sign may have been placed on the premises prejudice the plaintiff’s rights in any way. As was aptly said by Judge Haight in Underhill v. Collins (supra, 271-2), it rather enures to the benefit of the tenant, as it tends to reduce his liability for the full rent and at the same time not avoiding the tenant’s liability under the lease.
“ The plaintiff is entitled to judgment for the sum of thirty-five dollars for the rent of the month of May with costs.”
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.
Vol. 2.— [Rep.