121 N.Y.S. 483 | N.Y. App. Div. | 1910
This is an appeal by the plaintiffs from a judgment of nonsuit in their .action to recover rent for the months of October and November under a lease. The defendant pleaded a surrender, and the court upheld the plea upon the testimony of one of the plaintiffs.
A surrender of leased premises is created by operation of law when the parties to the lease do some act so inconsistent with the relation of landlord and tenant as to indicate that both have agreed to consider the surrender as made. (Gray v. Kaufman Dairy & 1. C. Co., 162 N. Y. 388.) Or, as the Supreme Court.of the United States says in Beall v. White (94 U. S. 389), speaking of a surrerider by operation of law : “ Such a conclusion may, in certain cases, arise by.operation of law, as where the owner of a particular estate'has been a party to some act, the validity of which he is by law after-wards estopped from disputing, and which would not be valid if Ins particular estate continued to exist. Textwriters agree that a surrender is the yielding up the estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties. It is either in express words, by which the lessee manifests his intention of yielding up Iris interest in the premises, oi* by operation of law, when the. parties without express surrender do some act which implies that they have both agreed to consider the surrender as made.” The burden of proof to establish a surrender rested upon the defendant.
In Redpath v. Roberts (3 Esp. 225) the plaintiff had put up a bill in the window and had sought to let the premises. Lord Kenyon said: “ That would afford no answer to the plaintiff’s action.. It was for the benefit of the defendant that the apartments should be let, nor would he infer from the circumstance of the party’s endeavoring to let them, that the contract was put an end to ; that there must be other circumstances to show it, and not an act of so equivocal a kind.”
That the mere offering to let itself, even to the extent of putting up a signboard and seeking tenants, is not sufficient proof of a surrender, is decided by Lane v. Nelson (7 Kulp [Penn.], 286 ; affd., on opinion, 167 Penn. St. 602); Pier v. Carr (69 id. 326); Blake v. Dick (15 Mont. 236, 243); Buck v. Lewis (46 Mo. App. 227, 231); Vincent v. Frelich (50 La. Ann. 384); West Side Auction House Co. v. Connecticut Mutual Ins. Co. (85 Ill. App. 497), and Scott v. Beecher (91 Mich. 590). See, too, Haynes v. Aldrich (133 N. Y. 287). Jones on Landlord and Tenant (§ 549) says: “ The mere attempt of the agent of the landlord to relet premises after an abandonment by the tenant would' not constitute a surrender by
There is a distinction made, of course, as indicated 'in the quotations already made, especially from the- language of Cookburn, O. J., and Hagarty, C. J. 0., between the mere naked attempt to relet the premises, which is an equivocal act, and the letting of promises to a tenant. The letting of tenancies by the landlord in his own name to a new tenant is said by the Court of Appeals to be an act unqualified by other conditions which would create a surrender by operation of law. (Gray v. Kaufman Dairy & I. C. Co., supra.) And it niay be that the reletting of premises themselves might be shown to be for the benefit of the tenant, and that, therefore, he would be a gainer rather than a loser by reason of such reletting: On the other hand, such reletting might operate as an acceptance of a surrender unless there was an. agreement, express or implied, that such reletting might be-made, as is pointed out by Haight, J., for the court in Underhill v. Collins (132 N. Y. 272). It is true that in the case of Crane v. Edwards (80 App. Div. 333) it was said that the, posting of a notice “To let” was incompatible with the existing state or term; but that statement was qualified by the phrase “ under the circumstances,” and in that case it appeared that the circumstances were that the tenant had been told to move and that 'the landlord had expressed his satisfaction at the prospect of his leaving. Thus in Hegeman v. McArthur (1 E. D. Smith, 147) it appeared that the tenant sent the plaintiff the key of the premises, that he received it and declared himself not dissatisfied, and that he entered into possession for the purpose of letting the same to another tenant and. placed upon the house the usual notice “ To let,” delivered the key to his agent and employed him to show the premises, and the. court held that that showed conclusively the pao animo with which the landlord resumed such possession, to wit, his entire willingness to take the premises from the tenant. But I have yet to find any ease where mere proof that the landlord, after the tenant had vacated the premises, put up a sign “ To let,” and offered the premises thereunder, was sufficient.
The judgment is reversed and a new trial is ordered, costs to abide the event.
' Hirschberg, P. J., Woodward, Thomas and Carr, JJ., concurred.
Judgment of the Municipal Court reversed and a new trial ordered, costs to abide the event.