48 N.Y.S. 598 | N.Y. App. Div. | 1897
The action is to recover the rent of certain premises based upon a holding over after the expiration of the term. The defense was a denial of the relation of landlord and tenant between the parties, and an affirmative claim that the letting was to the defendant and certain named associates conducting business, as an incorporated concern, under the name of “ The Dealing Automatic Safety Electric Systems for Railways.” For a further defense the defendant averred a surrender by the defendant of the premises and an acceptance of such surrender by the plaintiff. The verdict has established that the defendant rented the premises individually, and the evidence justified that finding.
The only question, therefore, which requires consideration relates to the surrender of the premises. It is without dispute that after the term had expired the property of the association continued to remain upon the demised premises. The court ruled as matter of law that such occupation constituted a holding over. In this respect, we think that the ruling was correct. The evidence established that all of the property of the association was permitted to remain upon the leased premises in the same condition as before the expiration of the term, and the conclusion, therefore, was that the occupation remained the same as before. This constituted a holding over within the clear meaning of the law. There is a class of cases which hold that the question of whether there has been a holding over by a tenant may become a question of fact. This question has arisen in cases where there was a clear intent to surrender possession, accompanied by negotiations to that end, and the removal of, the great bulk of the property from the premises. (Frost v. Akron Iron Co., 1 App. Div. 449; Excelsior Steam Power Co. v. Halsted, 5 id. 124.) In the first of the above cases the evidence would have warranted a finding that
It is claimed that the evidence warranted such a finding, and that the defendant ivas entitled to have such question submitted by the court to the jury. The declaration of the defendant, that he would no longer be responsible for the rent after the first of May, would not work any change in his liability, whether the declaration was oral or in writing, or both. We so held in the Momh&im case.' It must be borne in mind that the conventional relation of landlord and tenant existed between the parties, and that the occupation of the association was the occupation nf the defendant. In order, therefore, that a release from such relation should be worked, the evidence must have established that there was a surrender by ttye defendant of the term which he held, and a consequent release from liability!
It is with this relation in view that we are to examine the charge. The court was asked to charge that if the defendant notified the plaintiff before the expiration of the term that he would be under no further responsibility for the rent after the first of May, and the plaintiff agreed or assented to this, the defendant would not be liable. The court refused to charge as requested, and the defendant excepted. This request and refusal are to be considered in connection with what the court did charge upon this subject. At the request of the defendant, the court charged that the defendant could not be made liable unless he continued to occupy the premises after the first of May. And, further, that if prior to or on the first of May the premises were surrendered and plaintiff accepted such surrender and took possession, there could be no liability. We think the charge as a whole was as favorable to the defendant as he was entitled. Liability was finally made to rest upon the' ground that the continued, occupation must have been that of the defendant. This liability would not have been at all affected by an agreement that defendant was to be released upon the first of May, if thereafter he continued to occupy the premises, as the law would imply from such occupation a new agreement to pay. The jury under the submission were authorized to find that there was a surrender of the term, and that the defendant did not continue to occupy and hold
The judgment should be affirmed,, with costs.
All concurred.
Judgment and order affirmed, with costs.