45 N.Y.S. 839 | N.Y. App. Div. | 1897
On August 20, 1895, the plaintiff leased to the defendant a store and basement at 146 Broadway, in the city of Brooklyn, for the term of one year from the 1st day of September, 1895, at the yearly rent of $1,200, to be paid in equal monthly installments of $100. The lease gave the tenant the privilege of a renewal for three years at the same rental. The defendant entered into the occupation of the premises under the lease, and in June, 1896, was somewhat in arrears when the plaintiff called upon him and askéd him for two
The defendant remained in occupation of the property one month beyond the term specified in the lease — that is, until noon of October 1, 1896 — when he’ vacated the store. The present suit for the rent to November 1, 1896, was brought upon the théory that by thus holding over through the month of September the tenant elected to continue his tenancy for another year, or for the renewal term of three years provided for in the lease. The case was tried before a judge without a jury, and he dismissed the complaint upon the merits. His view was that the proof .showed the holding over through September to have been with the consent of the landlord,, who had accepted the rent for that .month and given his receipt therefor in June; and that where the parties anticipate that the tenant will or may hold over,, and expressly provide for that event, his continued occupation beyond the original term does not constitute a renewal or extension of the tenancy for another year. (Pickett v. Bartlett, 107 N. Y. 277.)
The evidence fully warranted the- conclusion that the landlord contemplated the.continuation .of the tenant’s occupancy throughout September. On no other assumption could he have taken the rent for that month. Indeed, the suggestion that the defendant should remain after the year expired appears to have proceeded from the plaintiff himself when he asked for the $500 in June, for that sum represented the rent for five months, a period which would not terminate until the end of September. The defendant’s holding'
In the case at bar the parties manifested such an agreement by accepting and paying the September rent in June. At least the trial court was authorized so to find, even if the proof did not demand the conclusion that the holding over was with the landlord’s consent. I think- the decision is well supported by the evidence and that the judgment ought to be affirmed.
All concurred.
Judgment affirmed, with costs.