4 Abb. N. Cas. 205 | New York Court of Common Pleas | 1878
The law is undoubtedly well settled, that where a tenant for a year or more holds over the term, the landlord has the option to treat him as a trespasser, or as a tenant for another year upon the same terms as of the previous lease (Schuyler v. Smith, 51 N. Y. 309). But that was not the point in this case. The question was whether there was a holding over within the meaning of this rule ; a point upon which there was so much doubt upon the evidence, that the judge upon the trial could not assume that the legal conclusion upon the testimony was, that the defendant held over the term, either as a trespasser or as a tenant; and that as the plaintiff had a right to treat the holding over as a tenancy she was entitled to payment, and that there was no question for the consideration of the jury.
By the clause in the lease, the rent was suspended in the
The term ended upon the 1st of May, 1876, and the defendant, as early as the preceding February, informed the plaintiff that he meant to give up the third floor, and would leave unless he got the fourth floor for $500, asking for a reduction of $200. Plaintiff thought the reduction too large; was willing to make a reduction of $100, but said:— “Let it stand over a little while, and I will see about it.” The fire occurred on the 30th of March. The fire was a veiy serious one : it burnt through the floor of the story occupied by the defendant, 'up to the fifth floor; liis goods fell through to the floor below; the fire patrol took possession of the premises, and it was not until the 11th of April following that he got possession of his property. On the 5th of May, whilst the repairs were being made, the defendant met the plaintiff in the building and informed her that the fourth floor would not be enough for him. He showed her what he wanted. She said she would make the rent $700. He declined to pay that amount; offered $625, but she would not agree to it, and told him that he must go out as soon as he possibly could, which was not an easy matter, as he had heavy machinery, the removal of which was obstructed by the condition in which the building was, in consequence of the fire.
He was ready to move out on the 11th of May, but there was a difficulty in removing his heavy machinery, as the hoisting rope was burnt and scorched. In taking down some lumber the rope broke and damaged a part of the hoistway, and he could not get out his heavy turning lathes—weighing 1,500, 700 and 400 pounds—without-a hoistway. On or about the 15th or 20th of May he applied to .the plaintiff to put in a hoisting rope, but she was very angry ; said she had something else to do besides-fixing ropes; and he had to have the hoistway repaired himself; without which it would have been impossible to have got the machinery down.
He was ready to move out on the 11th of May, but through the causes above referred to was not able to do so until the 26th of May, and he vacated the premises entirely about the 1st of June. There was a conflict as respects some of these facts, which raised a question, not for the court, but for the jury. The defendant testified that he did no work upon the premises, and could not; and did not do any business there after the fire—that is, after the 30th of March.
As the rent was suspended from the time of the fire until the building was completely repaired; as the repairs were not finished until the 25th of May, and during that time the defendant could not do any work or carry on any business; and as he and the plaintiff had under consideration the occupation of a different part of the building from the part he had formerly occupied when it was repaired, but were unable to agree' upon the .rent which should ■ be paid; and as his
Where a tenant, under a yearly hiring, without saying any thing to his landlord, or where the landlord has not consented to any new or different agreement, holds over the term, the landlord has a right to assume that the tenant has concluded to remain for another year upon the same terms. But that is not this case. Here the parties were in negotiation, and such negotiation was continued over the first of May,, for the occrrpation of a different part of the building" at a different rent; moreover, the part which the defendant had. occupied was undergoing repairs and was not then in a condition in which either the defendant could use and enjoy it as before the fire, or in which any other tenant could come in and take .possession of it. When that negotiation ended,"as-the parties could come to no agreement, the plaintiff’s orders were, as I have said, for the defendant to leave as soon as he could. In a few days thereafter he made an effort in good faith to leave, and that he did not get his bulky prop*.
The case, in my judgment, should have been submitted upon all the facts to the jury, as there was conflict as to-some of them, and I think, therefore, that the judgment, should be reversed.
Robinson, J., concurred.
Judgment reversed.