70 N.Y.S. 268 | N.Y. Sup. Ct. | 1901
The defendant held a lease of the premises in question, expiring on the 30th day of April, 1899. The lease was for the term of eleven months and commenced on the 1st day of June, 1898. The plaintiffs claim that the defendant held beyond his term and thus bound himself to pay the rent at the stipulated price for another eleven months. On the trial a jury was waived and whatever questions of law or fact were involved were submitted to the court.
The testimony discloses that there is a domestic corporation by the name of “ Ernest Ochs ” of which the defendant is president. As early as September 6, 1894, one "Edward Fitzpatrick, who apparently at that time occupied the premises in question as a saloon, gave a chattel mortgage upon the bar fixtures, tables, chairs, etc., therein to Ernest Ochs, the corporation. This mortgage was filed September 7, 1894, and the last renewal was September 1, 1898. The chattel mortgage states that it is given to the corporation and describes the property and its location. The lease did not prohibit the defendant from assigning or subletting it, and Fitzpatrick was the actual occupant. The holding over consisted of the leaving of the bar fixtures, tables, chairs, etc., in the premises until the fifteenth of May. Ho business was done after the thirtieth of April. On the first of May, shortly after noon, Fitzpatrick removed from the building all the property which he considered belonged to himself, and from that time on
I think it must be said that Ochs, the individual, and not the corporation, was the tenant, and that the defendant must be held responsible for the acts of the subtenant, Fitzpatrick. The defendant is not responsible, however, for the acts of the corporation, the brewing company, in leaving the property upon which it held a chattel mortgage and which was abandoned to it by Fitzpatrick, the mortgagor, on the premises.
The question, therefore, narrows itself to this. Was the holding over by Fitzpatrick until the afternoon of May first such an act as gave the plaintiffs the right to treat the defendant as a tenant for another term of eleven months?
On the trial my impression was that the well-settled rule with respect to tenants holding over did not apply to leases for odd periods of time. But an examination of the cases cited by counsel convinces me that if the defendant, through Fitzpatrick, did actually hold over, that the rule would apply 'and he would be bound for a succeeding eleven months. This question seems to have been quite exhaustively treated in the case of Wood v. Gordon, 44 N. Y. St. Repr. 640. In that case the court cites many cases outside of this state holding that the rule applies to a lease for odd number of months; and on principle there seems to be no good reason why the rule should not apply to such a period as well as to a tenancy from year to year or from month to month. But such holding over must be intentional and wrongful to have the effect of continuing the lease for an additional period. And it -is not every holding over that constitutes a renewal of the tenancy. Herter v. Mullen, 159 N. Y. 28; Wood v. Gordon, 44 N. Y. St. Repr. 642; McCabe v. Evers, 30 id. 833 ; Smith v. Allt, 7 Daly, 492.
The defendant raised, upon the trial, other questions with respect to the character of the complaint, and variance between the proof and the allegations. If the court is correct in the foregoing conclusions, a consideration of those questions is unnecessary,
The'complaint must be dismissed, and a decision may be prepared in accordance with the foregoing.
Complaint dismissed.