The agreement between the parties is set out in the dissenting opinion of Mr. Justice Merrell.
In the agreed statement of facts it is admitted that “ on or about the 1st day of May, 1916, the said defendant entered into possession under the aforesaid agreement, and both parties entered into the performance of the provisions thereof, and continued therein until the 30th day of April, 1917. No notice in writing of the defendant’s intention to terminate this agreement was given prior to the said 30th day of April, 1917. Thereafter the said defendant continued in possession of said premises * * * under said agreement and said defendant paid the moneys stipulated by said document, without any change thereunder until the 30th day of September, 1918,” when the “ defendant vacated the premises.”
It is also admitted that “ from October 1st, 1918, to April 30th, 1919, the space reserved under the agreement set forth herein for the use of the said defendant was not rented to any other person or firm, and that the plaintiff received no rent therefor during the said period from any other person or firm, and that the plaintiff received no remuneration for the services provided for in the *308aforesaid agreement from any person or firm during the said period and that the plaintiff during all of said time was ready, willing and able to furnish said services to the said defendant as called for in the said agreement.”
The sole question in the case is whether the agreement is in effect a lease notwithstanding that there are no express words therein characterizing it as such and that the plaintiff agreed to render the various services detailed in the agreement. No particular words are necessary to constitute a lease where it appears that it was the intention of one party to “ dispossess himself of the premises and of the other to enter and occupy as the former himself had the right to do.” (24 Cyc. 901.)
The stipulation of the parties states that “ the space reserved under the agreement set forth herein for the use of the said defendant was not rented to any other person or firm.” The original agreement contemplated that the defendant was to use the premises for the purpose of delivering its goods to its customers, inasmuch as it expressly states that the plaintiff was “ to furnish the labor for the loading of the trucks of the customers of the Duffy Malt Whiskey Co. as the goods are called for,” and further states that defendant’s representatives had right of access to the building “ at all times during business hours.”
It is, therefore, evident that a portion of a floor was reserved to defendant for its exclusive use in the conduct of its business. We thus find all the elements of a lease of a portion of the loft or floor to be devoted to the exclusive use of the defendant. It is a matter of common knowledge that it is customary in the leasing of offices for the landlord to furnish heat and elevator service and to keep the offices clean. So, too, in the leasing of modern apartments, the landlord obligates himself to furnish a great variety of service in connection with the tenancy, as an incident of the letting.
If the relationship of landlord and tenant was created by the agreement, then upon the tenant’s holding over after the expiration of the term, the law will imply an agreement to hold over for the year upon the terms of the agreement. (Schuyler v. Smith, 51 N. Y. 309.)
Appellant contends that the agreement can “ no more be called a lease than it may be called a mere contract to furnish freight-handling labor.” Clearly the services agreed to be rendered were entirely incidental to the leasing of a part of the plaintiff’s premises.
But it happens that the law that the principle of yearly hiring is also “ applicable to all contracts of hiring and service whether written or unwritten, whether express or implied, and whatever the *309nature of the services, its modifications arise whenever the contract contains stipulations inconsistent with its application, or when, from some well-known custom on the subject, the parties may be considered to have contracted with sole reference to such customs.” (Adams v. Fitzpatrick, 125 N. Y. 124.)
The plaintiff corporation having agreed to perform certain services, it follows in reason that the contract for the rendition of such services for at least a year implies a renewal from year to year under the facts here disclosed.
The conclusion is inevitable, whether the agreement is treated as a lease under which the lessor obligates himself to furnish incidental services or whether it was an agreement of letting in part and of furnishing services in part for a term of at least one year, that upon a holding over by the tenant and the continuance of the service, after the expiration of the term, it must be held that the agreement is renewable from year to year, subject to termination at the end of any year.
The judgment is affirmed, with costs.
Clarke, P. J:, Laughlin and Smith, JJ., concur; Merrell, J., dissents.