29 Misc. 642 | N.Y. App. Term. | 1899
The determination of this appeal turns upon the question whether the facts disclosed an acceptance of the surrender of the demised premises, or a reletting for the account of the tenant, with attendant liability for a resulting deficiency.
On the 4th day of February, 1898, the plaintiff, by written indenture, leased to the defendants, certain premises for the term of one year, commencing on the 1st day of May, 1898, at an annual rental of nine hundred dollars, payable monthly in advance. The rent for the month of May, 1898, was paid, but the defendants, prior to that date, and on the 30th day of April, 1898, vacated the premises. On the trial no evidence was offered by the defendants. The plaintiff testified that her husband acted as her agent for the house, and that the first intimation she received of the proposed abandonment of the premises was on the thirtieth day of April through a postal card from the defendants, notifying her of their intention to move. The husband testified that on that morning he called on the defendant, Gregory Paul, and told him “ he didn’t treat us right in vacating the house after signing the lease; * * * and I told him that I would have to sue him and he said you can go ahead" and see what you can get. I told him to leave the keys in the tailor store and I went after them some time in the afternoon and I guess one key was short.” On the afternoon of the s.ame day the husband went to the designated tailor shop, obtained one key, and then went to the house where he found the other. At the interview, which was the only one had, nothing was said about reletting or surrendering the premises.' One month later, without any notice to the defendants, the plaintiff placed a new tenant in possession for the remainder of the year at a monthly rental of sixty-five dollars. The stipulated monthly rental under the lease being seventy-five dollars, this action was brought to recover the difference of ten dollars per month for a period of eleven -months.
The lease is silent on the subject of re-entry, after abandonment, for the purpose of reletting for the account of the tenant. There is no provision that the latter should be liable for any deficiency, arising from a demise to a new tenant, for the balance
We appreciate that it is the tendency of the courts to go far in spelling out of slight circumstances the necessary assent to the reletting where no permissive provision is inserted in the lease; in this case, however, we fail to find any supporting facts and cannot, therefore, depart from what is well-established law.
It follows that the judgment should be reversed.
Fbeedman, P. J., and MacLean, J., concur.
Judgment reversed and new trial ordered, with costs to appellants to abide event.