117 N.Y.S. 569 | N.Y. App. Div. | 1909
Lead Opinion
By an instrument dated the 19th day of February, 1907, the defendant leased from plaintiff a certain building known as Nos. 507-509 West Nineteenth street, in the city of New York, for one year from the 1st day of May, 1907, at the yearly rental of $2,500. The defendant went into possession of the premises under that lease, and actually occupied the premises until July 10, 1907, when it moved out, leaving no property of any kind upon the premises. The building remained vacant until January or February, 1908, when the defendant, with plaintiff’s consent, sublet the premises to the Salvation Army who entered into possession of the property and continued to occupy it until May 11, 1908. There was a Mrs. Corgan who had been in possession of the property before the defendant took possession as a caretaker and wlio¡' remained upon the property during all the time that the defendent and the Salvation Army were in possession. The defendant never received the keys of the property, they at all times being in possession of this Mrs. Corgan, but’ temporarily occupied it during the time that a building which it had occupied was being repaired. The defendant had nothing further to do with the property after the Salvation Army took possession, except to pay the rent for the balance of the term. During the time that the Salvation Army occupied the property it was used by it as a relief station for caring for homeless men, who were required to saw wood, bale up rags and do work of that kind, for which they were given shelter and food. Some time prior to the first of May the Salvation Army vacated the premises. The manager of the Salvation Army, who was called as a witness for
The plaintiff' testified that when lie went to the premises ón the first of May he saw bales of rags or pressed bales . and furniture on the premises ; that on the second of May he found seventeen bales of fifis stuff there that consisted of papers and rags and that a large number of mattresses were on the second floor; that lie also saw twenty-four made up bales and an iron safe there, and a large1 number of persons were about' the building; that on May fourth lie again went to the premises and saw some furniture there; that: some of the bales had been removed but some still remained; that á Mrs.. Corgan had been upon the premises as .caretaker for tenants in possession of the property before the defendant’s time, and,' had continued in possession during the term of this lease ; some time before the first of May she'bad an interview with the plaintiff, who
I do not think that this evidence justified the finding of the trial judge that the defendant held over and continued in possession of the premises after the termination of the lease. There is no question about the rule that, where a tenant holds over after the expiration of his term, the law implies an agreement for a new. lease of the premises for another year upon the terms of the prior lease, but what is essential to be shown is a continued holding of the premises by the tenant after the expiration of the term. In this case the evidence is undisputed that the defendant had not been in the actual possession of the premises for months prior to the termination of the lease. The sub-lease to the Salvation Army was apparently made with the consent of the plaintiff, and the Salvation Army thus became a sub-tenant. Assuming that the possession of the subtenant would be the possession of the defendant, which would justify the inference of a new lease, I think the evidence is substantially uncontradicted that the occupation by the Salvation Army terminated on or before the first of May, the Salvation Army leaving upon the' premises certain property, some of which it subsequently removed and some of which remained the property of this caretaker, who continued in possession of the premises. During all this period this caretaker seems to have been in the actual possession of the premises, holding the keys and maintaining it for the various tenants and sub-tenants. When the Salvation Army moved out, she still continued in possession of the premises, but this.time under
To entitle a landlord to claim an implied lease for another year on account of a tenant’s holding over, the possession of the tenant must be an actual possession of the property as against the landlord, , so that, the tenant would by virtue of his possession become a tres^ passer. In this case the actual custody of the property was in this caretaker, who, after the first of May, under the authority, of the plaintiff, had the care and custody of the property for him; certainly neither the defendant nor the Salvation Army could have ejected her. There is nothing in the evidence to show that either the defendant or its sub-tenant remained' in actual possession and control of the property subsequent to May first, or was in actual occupation of the property on May fourth, when the notice was given, to justify the implication of a new lease for another year.
I think, therefore, the judgment must be reversed and. a new trial ordered, with costs to the appellant to abide the event.
McLaughlin and Laughlin, JJ., concurred; Glakke and Houghton, JJ., dissented.
Dissenting Opinion
The rules of law governing the rights of landlords and the liabilities of tenants in cases of “ holding over ” are well settled and do not need restatement. A careful review of the eases is found in Oussani v. Thompson (19 Misc. Rep. 524). Where the tenant fails to deliver possession the law implies an agreement on his part to hold over for a year upon the terms of the prior lease. It lies with the landlord to exercise the option and not with the tenant. (Schuyler v. Smith, 51 N. Y. 309.) The fact that the actual holding over was by a sub-tenant of the lessees does not affect the rule (Haynes v. Aldrich, 133 N. Y. 287, where Finch, J,, said: “ The appellant does not deny the rule [that a holding over amounts to a lease for another year] but seeks to qualify it, so as to mean that it is only where the tenant holds over voluntarily and for his own convenience that the landlord’s right arises, and that it does not so arise when the tenant holds over involuntarily, not for his own convenience, but because he cannot help it.. I am averse to any such qualification.”)
As there is no dispute as to the law the question is reduced to one of fact. There was sufficient evidence to sustain the judgment of the trial court. There was some conflict as to details and questions of credibility were presented peculiarly within the province of the trier of the facts, who had the witnesses before him, for determination. In the opinion of the Municipal Court justice those ques^ • tions have been carefully considered and resolved in favor of the plaintiff. His judgment Jhas been affirmed by the Appellate Term. We should not reverse upon the facts under such circumstances unless there was no evidence to sustain the judgment or said judgment was clearly against the weight of the evidence.
The determination of the Appellate Term should be affirmed, with costs and disbursements to the respondent.
Houghton, J., concurred.
Determination and judgment reversed and new trial ordered, costs to appellant to abide event.