| N.Y. App. Term. | May 18, 1911
Plaintiffs, landlords, had leased the fifth floor of certain premises to defendants for the term of three years, at a yearly rental of $4,000, from February 1, 1908, to February 1, 1911. The lease contains a covenant that, in the case of nonpayment of the rent, the landlord might enter the premises and relet as agents of the lessees, holding the lessees for any deficiency. In October, 1910, a dispute arose as a result of a fire on the premises, and defendants refused to pay further rent. Immediately thereupon plaintiffs relet the premises for a term from February 1, 1911, to February 1, 1913. The new lease does not recite that plaintiffs were acting as agents of defendants. It covers the fifth and fourth floors of the building at a yearly rental of $8,500. The new tenants further agreed, under the new lease, to pay $750 rent for the fifth floor for the period intervening before February 1, 1911, and a contingent amount for the fourth floor. This action is brought to recover the rent for November and December, 1910, and January, 1911, under the old lease.
I do not find any- of the points raised by the appellants on this appeal to have been well taken. It is, however, apparent that the leasing by plaintiffs, in their own name, for a period extending one year beyond the term of defendants’ lease, of the premises covered by that lease plus an entire floor below, controlled by the plaintiffs solely, at a gross rental, in which there is no apportionment of the amount applicable to "the two floors severally, is conclusive evidence that the new lease was not made by the plaintiffs as agents for the defendants, and that it constituted an acceptance of the surrender of the old lease, tendered by the defendants when they declined to pay further rent.
Judgment reversed, and new trial ordered, with costs to appellants to abide the event. All concur.