(dissenting):
The action was brought to recover rent alleged to be due under á lease. The plaintiff had a verdict, and from the judgment entered thereon he has appealed. ' ' •
The complaint, except" the formal parts of it, was as follows:
“ Second. That on ór about March 9, 1891, plaintiff rented to the defendants, and they hired and took from him, a certain portion of *331the dwelling house known as No. 2046 Madison avenue, in the city of New York, from May 1, 1894, at the yearly rent of Nine Hundred and Twenty-five' ($925) Dollars, payable in equal monthly installments on the first day of each month, in advance.
“ Third. That said defendants took possession of said premises on or about May 1, 1894, and have continued in possession thereof ever since.
“ Fourth. That the defendants have not paid the monthly instalments for rent for May, June, July, August, September,.October or November, 1895, amounting to Five Hundred and Thirty-nine 59/100 ($539.59) Dollars.”
Judgment was demanded for this amount.
The answer admitted that, at the time stated in the complaint, the parties entered into an agreement by which the defendants hired from the plaintiff the premises referred to for one year — May 1, 1894, to May 1, 1895 — and alleged “that on May 1, 1895, these defendants were prevented from yielding up possession by the act of God in afflicting the mother of these defendants, who was a member of the family of defendants, with a disease which, on said date and for some time previous thereto, and to and including May 15, 1895, confined her to her bed, and which disease and affliction was so great that it would have endangered her life to have taken her from her said room in said house referred to in plaintiff’s complaint — her life would have been imperilled or her disease aggravated, and that for this reason and no other, of which plaintiff had full knowledge and notice from these defendants, defendants were obliged to and did occupy said premises until May 15, 1895, and no longer; that all property, furniture and belongings of defendants and their family were removed from said premises and each and every part thereof, on May 1, 1895, except from the sickroom, or bedroom, in which their said mother was confined, and defendants were forbidden by the physicians in charge from moving or in any manner disturbing their mother until' May 15, 1895, when she was removed.” ■
The answer further alleged that on the 15th of May, 1895, possession of the premises was surrendered to and accepted by the plaintiff.
Upon the issues thus raised two trials have been had. At the first the facts were agreed upon — and they were substantially those alleged in the answer — except the allegation that .plaintiff accepted *332the surrender of the premises, and the trial court held that the possession of the one room for a period of fifteen days after the expiration of thé lease constituted a holding over within the meaning of the law, and gave to the plaintiff — the landlord — the option of treating the defendants-—the tenants—as trespassers or as tenants for another year, and- that the plaintiff, by bringing the action in the form in which he did, had elected to treat them as tenants, and it thereupon -directed a verdict for the plaintiff for the amount claimed in the complaint. The defendants excepted, and from the judgment thereafter entered they appealed to this court, where the judgment was affirmed (9 App. Div. 593), but on appeal to the Court of Appeals it was reversed and -a new trial ordered. (159 N. Y. 28.)
At the second trial substantially the same facts which were agreed upon at the first trial were established by the evidence introduced — that the mother was a member of the defendants’ family; that her serious illness rendered it impossible for defendants to entirely remove from -the premises on the first of May; that they did remove all of-their property and effects from the premises on that day, except from one room in which the mother was confined; and they removed entirely from that on the fifteenth of May, "which was the earliest day that the attending physician Would permit her to be moved.
In addition to these facts it was also made to appear, by testimony-offered on the part of the defendants, that upon the day the mother was removed- from the house the keys thereto-—two in number — were attached to a tag, addressed to the plaintiff’s agent at 8Í1 Madison avenue, and sent to her by mail, with the postage prepaid thereon ; that she was accustomed to receive mail there, the defendants having sent to her at that place checks in payment of the rent under the lease. The plaintiff’s agent testified, however, that she did not receive the keys until the second or third of June, and as tending to explain this fact, it was shown that she left the -city of .-Row York early in May, and before leaving gave directions to the post office authorities to forward her mail to Monmouth Beach — the place to which she went, and where she remained until the fifteenth of May, when she returned to and remained in the city of Rew York until the twenty-first of that month, when she again left and went to Onteora, where she remained until the tenth of June,. *333and it was at the latter place, according to her testimony, that she personally received the keys.
It also appeared that on or about the sixteenth of May the plaintiff’s agent (the exact date she was unable to state) received the following letter, addressed to her at her. residence, 841 Madison avenue: ■
“ Hew York, May 16, 1895.
" Mrs. Mary Herter,
“ 841 Madison Ave.:
“Madame.— Your house, 2046 Madison Ave., is now vacant. Kindly send your account.
“Mrs, MARGARET MULLER,
“J. M.”.
At the close of the trial the plaintiff moved for the direction of a verdict for the amount claimed in the complaint, which was denied, the trial court holding that the defendants were only liable for rent from the first of May to the time when they surrendered possession,, and that if such surrender was made on the fifteenth of May, then "the plaintiff was only entitled to recover for fifteen days’ rent, and ' when the surrender actually was made was a question of fact to be determined by the jury. No exception was taken to this ruling, and the case was thereupon submitted to the jury with instructions to this effect, the learned trial justice, among other things, saying: " This question of surrender is the one that goes'to you for determination ; and the determination of the case hinges upon your finding on that subject. If you find, as matter of fact, that the keys were tied together, a tag attached to them, and addressed to the-landlord at her residence on Madison avenue, postage thereon prepaid, and that they were properly deposited in the post office on May 15th, 1895, the surrender by the defendants was complete -on the receipt at the landlord’s house of those keys, and there was no liability for the rent after that time; that is,.after the time .the keys reached the landlord’s home on Madison avenue. * * * If the keys were mailed on May 15th and reached Mrs. Herfcer’s house on that day, find for the plaintiff for $49.29,. the rent for fifteen days with the interest included.' If the keys were not mailed until the latter part of May, find in favor of the plaintiff for one month’s rent and interest, together maidng $77.08.”-
*334The instruction thus given seems to have been entirely satisfactory to the plaintiff, because he took no exception to it. The jury rendered a verdict of forty-nine dollars and twenty-nine cents, and the plaintiff is not in a position to challenge its correctness. As already said, he took no exception to the charge of the court, directing the jury to'return a verdict for this sum provided, they found certain facts ■ to exist, and in the absence of an exception it must be held, as it seems to me, that the plaintiff, was concluded by it. The jury, by their verdict* found that the beys were mailed to and received at the residence of the plaintiff’s agent on the fifteenth of May. There is evidence to.sustain the finding, and it certainly cannot be said to be against the weight of evidence, in view of the fact that there is no statement in the case that it contains all the evidence given’ upon the trial.
We have presented, then, a case which was submitted to the jury with instructions that if they found certain facts to be established,' to return a verdict for a given amount. They returned a verdict for that amount and there is some evidence to sustain the finding, and how a judgment entered upon that verdict can be reversed, when no exception was taken to the charge, and there is' no certificate in the case that it contains' all the evidence, I am unable to understand. . ' . ■
But upon the merits, I think this judgment is right and should he affirmed. Applying the rule of law laid down by the Court of Appeals, when this case was before it, to the facts established upon the trial, it must be held that the relation of landlord and tenant did not exist between the plaintiff and .the defendants after the 1st of May, 1895. The Court of Appeals held that the defendants were not, after the first of May, holding over, within the meaning of the rule which permits the landlord to continue the lease and recover rent according to the terms of it. Judge O’Brien, who delivered the prevailing opinion, said: “ There can be no doubt that the rule of law is settled beyond debate or controversy, which permits the landlord at his election, to treat the tenant as holding for another year, when the latter remains in possession after the expiration of the term. When the demise is for a definite term of one year, at a fixed rent, and the tenant holds over after that term expires, the landlord may treat him as a tenant for another year and collect rent *335accordingly. (Haynes v. Aldrich, 133 N. Y. 287; Adams v. Cohoes, 127 id. 182.) But the question is whether the tenant did, in fact, hold over after the expiration of the term, within the meaning of that rule. * * * The principle upon which the rule is founded, is that the holding over is such an act of the tenant that the law implies a contract on his part, or leasing of the premises for another year. But whenever the law implies a contract from the act or conduct of the party, the act itself, whatever it may he, must be voluntary. The law does not imply a contract or obligation from the act of the party which proceeds from mistake or fraud, or which results from force or coercion of any kind, or is due to any stress of circumstances which involves peril to his life or that of some member of his family. * * * Where the holding over is wrongful or voluntary, and not unavoidable in the strictest sense, the rule must be permitted to have full application. But where the tenant, as. in this case, is obliged to retain a room in the house for a short period of time, in order to avoid the peril of exposing a member of his family to danger and death, it cannot properly be said that it is a holding over within the meaning of the law.”
If it is true, as Judge O’Bbien says, that there was not “ a holding over within the meaning of the law ” after the first of May, then it necessarily follows that the relation of landlord and tenant, which had previously existed between the parties, terminated on that day. If it did terminate on that day, it certainly did not thereafter exist, because it is not claimed that a new lease, either written or paroi, was entered into by them, at or subsequent to that time, and nothing was thereafter done which was sufficicient to restore that relation between the parties.
According to the prevailing opinion, the defendants, because they did not personally deliver the keys to the. plaintiff’s agent on the fifteenth of May, continued in possession until such delivery was made, and were, therefore, liable for a month’s rent, at the rate stipulated in the lease. If the conclusion there reached be correct, then the plaintiff is entitled to recover, not for one month’s rent, but for a year’s rent. A voluntary holding over for fifteen days, under, all of the decisions, so far as I am aware, gives the landlord the option of treating the person holding over as a trespasser, or to waive the trespass and treat him as a tenant. Here, the plaintiff *336waived the trespass, if it can be so called, and treated the defendants as tenants, by bringing • his action to recover rent. But, as before indicated, there was no holding over after the expiration of the lease. The use and occupation of the one room from the first to the fifteenth of May was not wrongful. It was caused by circumstances . for which the defendants were not responsible and over which they had nó control, and the failure to personally deliver the keys to the-plaintiff’s agent before thé first of June did not have the effect of restoring the relation of landlord and tenant which had theretofore existed, or of making the defendants liable for rent until such keys were' personally delivered. The relation of landlord and tenant cannot be created in this way. It can only be created' by an agreement, either express or implied. It did not here exist, and, therefore, under the allegations of; the complaint, the plaintiff was not entitled to recover anything. In an action to recover rent under a lease the plaintiff must show the existence of .the relation of landlord and tenant, and unless that fact be established no recovery can be had. Here, the relation of landlord and tenant did not exist, and the complaint should have been dismissed. This does not mean that the owner of premises is not entitled to recover damages from the tenant, who, on account of circumstances over which he has no control, fails to surrender possession at the expiration of the lease or to deliver the keys personally to the landlord when he thereafter sur-. renders. On the contrary, the landlord in such cases is entitled to recover, in an action brought for that purpose, all the damages he has sustained. Here, the defendants were obligated to pay to the plaintiff what the use and occupation of the premises' were worth from the first of May until, they surrendered possession, and, in addition, thereto, such damages as resulted to the plaintiff from their unauthorized, but not wrongful, use and occupation of them.
This seems to. me to be the reasonable rule or-measure of damages where a tenant is prevented, either by act of God, or other circumstances over which he has no control, from surrendering possession at the expiration- of his lease. For this occupation the landlord gets all that he is entitled to.. If. he has sustained damage by reason of the occupation, in addition to the use, he gets that. He ought; not, under such circumstances, to recover more, or be compelled to accept less. This, evidently, was the view entertained by the Court of *337Appeals, Judge O’Brien saying: “ The plaintiff was not entitled tc recover rent from the time when the house was completely vacated.” And Judge Martin saying : “ It may well be, and doubtless is, true that the plaintiff may recover for the time the premises were Occupied by the defendants, or if by reason of their failure to surrender up the premises, additional damages follow, that they may be recovered in a proper action, so that all damages caused by the -defendants’ misfortune would be borne by them, but that he cannot recover the rent for the subsequent year, upon the implied contract or duty imposed by law, seems to me clear.”
But even treating this action (and I do not see how it can be) as ■one brought to recover damages caused by the.defendants’ failure to surrender possession of the premises at the expiration of the lease, then the plaintiff is not in a position to complain of the verdict. There is no dispute but that the defendants used and occupied the premises from the first to the fifteenth of May, a period -of fifteen days, and they thereby became obligated to pay what the premises were reasonably worth for that time. The lease was the •only evidence offered by which the .jury could arrive at the value o'f the use and occupation, no attempt being made to establish any other damages, and they having used this as a basis for their verdict, and having found in favor of the plaintiff for the sum of forty-nine •dollars and twenty-nine cents, the amount of rent for fifteen days as fixed by the prior lease,, their verdict ought not to be disturbed, because plaintiff has received all he is entitled to. This assumes that the defendants surrendered possession on the fifteenth of May, and I am of the opinion that what they did constituted, in law, under the facts here presented, a valid surrender. They had been in the habit of paying to the plaintiff’s agent their rent by mail. The keys were sent to the same person, at" the same place, with the postage prepaid. They reached that place and were, by the direction of the plaintiff’s agent, sent to another place, either Monmouth Beach or Onteora, which was the cause of the delay in her personally receiving them. "Whether they were remailed after reaching the plaintiff’s residence in the city of New York, or at Monmouth Beach, does not appear. It does appear, however, that they were remailed after they were sent by the defendants, because when they *338reached the plaintiff’s agent at Onteora they were inclosed in an envelope, which was not the case when they were mailed by the defendants.
I 'cannot assent to the proposition that a tenant cannot surrender possession of .premises, after the expiration of his lease, without personally delivering the keys to the landlord. If this doctrine be true, then a tenant who is unable by reason of circumstances over which he has no control, to surrender possession of. the premises ón the expiration of the lease, can be compelled to keep them for another year, by the landlord’s secreting himself,' leaving the State, or.preventing, in any way, the tenant from personally delivering the keys to him. There is not, and manifestly cannot be, such an unjust and unreasonable rule.
In the case before us, can it be said that the defendants .were obliged to follow the plaintiff’s agent into' another State ? Manifestly not. What, then, could they do to surrender possession ? Take the keys to the residence of the plaintiff’s agent, leave them with some person in charge, or mail them to her there, and if they •reached their destination, that moment' the surrender was complete.
For these reasons I am unable to concur in the opinion of the majority of the court.
Judgment and order, reversed, new trial ordered, costs to appellant to abide event.