Upon the trial of this case the facts were undisputed, and at the close of the evidence the justice directed a verdict in favor of the tenant.
The petition here was made by one Lucker, and set forth that Lawrence, the landlord, owned the premises ; that Lucker, as his agent, entered into an agreement for a lease with the defendant on May 15, 1914, by the terms of which the landlord rented the premises to Goodstein, the tenant, for a term commencing on or about May 15, 1914 (conceded on the trial to be May 7, 1914), and ending on August 1, 1914, and that a lease in writing should be made between the landlord and the tenant which should contain the usual covenants for a term of five years, commencing on July 1, 1914; that the tenant entered into possession; that the landlord on May 22,1914, executed the lease which was delivered to the tenant who refused to execute the same; that thirty days’ notice to quit and surrender the premises had been given; that the tenant’s term had expired, and that he held over and continued to occupy without permission.
The answer denied the petition, except that it admitted the relation of landlord and tenant, and for a separate defense alleged that the tenant was in possession 1 ‘ under a lease entered into between the parties, and that the term of the lease had not expired.”
The defendant’s exhibit relied on by him as a lease is as follows:
“ I agree to let to Mr. Joseph Goodstein the west 1/2 of store 356 West 125th Street for 5 years at a rental *21of $1200 for 1st year, $1200 for the 2nd year, $1300 for 3rd year, $1400 for 4th year, $1500 for 5th year.
‘ ‘ If candy man takes rear as agreed the rent is to he paid $100 per year less,— rear to he 7 feet wide. Bent paid to July 31,1914.
“ G. L. Lawrence,
“ Per A. Lttcker.”
'The tenant produced the proposed lease submitted to him by plaintiff, and admitted that he had declined to sign it. He called no witnesses, and the landlord was precluded by the ruling of the court from showing any conversations between Lucker and the defendant leading up to the making of his agreement, upon the ground that such conversations were “ merged in the terms of the instrument now in evidence. ’ ’
It is perfectly clear that. the written instrument offered by the tenant does not constitute a lease for five years. It is simply an agreement to -make a lease and a letting of the premises to defendant from the time it was made until July 31, 1914, for the sum of $100. The words of the writing are not in praesenti. The only fixed term therein is for five years, but when the term begins or ends, or how the rent is to be paid, is not stated. It is not even signed by the tenant, and many essential elements of a lease are lacking.
In Sherry v. Proal, 131 App. Div. 774, Mr. Justice Scott writing the opinion said: “ The rule is well established and often enforced, that in a case wherein, under the Statute of Frauds, a tenancy can lawfully be created by parol, and the parties have orally agreed upon all the terms, nothing being left to be done except to put them in writing, the letting will be deemed to be complete although the stipulated written lease should never be executed. This well-recognized rule is, however, to be applied with caution and is never applied *22unless it clearly appears that every material term of the contract was in fact agreed to, and that nothing remained for future negotiations and agreement. ’ ’
Applying this rule to the case at bar, it is idle to claim that the defendant herein had a valid subsisting five-year lease of the premises, the term to begin on July thirty-first.
The respondent claims “if it is an invalid or void lease, for any reason, and this is by no means conceded, it is the contention of the respondent that, since the tenant entered into possession of the premises with the consent of the landlord, and paid rent according to the terms of the agreement, and since the agreement provides for an annual rental, there is an implied tenancy from year to year which would be from May 7, 1914, when the tenant concededly entered into possession, to May 7, 1915, or, that he was nothing less in any event than a tenant at will, and under such circumstances, since the property was located in the city of New York, that he became a tenant for an indefinite term by virtue of section 232 of the Real Property Law, and that his term therefore did not terminate until the 1st day of May next after his possession commenced under the agreement.”
This point was not raised in the court below, and we would not now consider it except as there must be a new trial the respondent should not be allowed to cloud the issue. The legal effect of the written instrument under which defendant entered into possession of the premises is that he had a right of occupancy thereunder for a definite term, that is, from May seventh to July thirty-first, for which he paid $100. When he overstayed, without a further leasing, he became a tenant at will or by sufferance, and at most was only entitled to thirty days’ notice to surrender, and this he received. It was conceded that Lucker had no *23written authority to act as agent for the landlord; consequently he could not make a lease for five years. Beal Prop. Law, § 245.
Bijur and Page, JJ., concur.
Final order reversed and new trial ordered, with costs to appellant to abide event.