Semansky v. Archibald

126 N.Y.S. 385 | N.Y. App. Term. | 1911

BRADY, J.

This action was brought by plaintiff to recover from defendant rent for the month of September, 1910. It appears from the evidence that the defendant held under a lease expiring August 30, 1910; that prior to the expiration of the lease the plaintiff notified the secretary of said defendant that if it remained over in possession of the premises after the expiration of the lease the rent would be $150 per month, payable in advance on the 1st day of the month, and that it would be under a monthly tenancy; that’the defendant’s secretary said that the association would have a meeting, and they would leave it to the council; that the defendant remained over after the expiration of the lease, and the rent for September had not been paid. The plaintiff made a demand on the defendant ror the rent at the increased rate on September 1, 1910. Defendant refused to pay the rent at the increased rate, and notified the plaintiff that they would move. On September 2, 1910, the plaintiff instituted summary proceedings for nonpayment of rent, and served notice on the defendant. On September 6, 1910, the return day, the defendant appeared in court, and was given until September 10, 1910, to vacate the premises. Defendant testified that they were moving out as rapidly as possible, and would have had all their things moved out by September 10th, but plaintiff locked the door and prevented defendant from moving the safe until September 11, 1910.

The pleadings were oral, and the action was tried by the court without a jury, and the justice gave judgment for defendant. There is no question here about the fact of holding over. It is not enough that there was a holding over, not unavoidable, which might have been provided against, and where the chief difficulty grew out of the defendant’s own act. No impossibility of removal was shown, merely difficulty and inconvenience, which should have been and might have been foreseen and provided against. The rule is well settled that where a tenant holds over after the expiration of his term the •law will imply an agreement to hold for a year upon the terms of the prior lease; that option to so regard it is with the landlord, and! not with the tenant, and the latter holds over his term at his peril. Commissioners of Pilots v. Clark, 33 N. Y. 251. The act of the defendant holding over has given the plaintiff a legal right to treat him as a tenant, and it is not in his power to throw off that character, however onerous it may be. Conway v. Starkweather, 1 Denio,. 114.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

GIEGERICH, J., concurs. GAVEGAN, J., talcing no part.