The facts of this case, which are undisputed or which appear to be established by a preponderance of evidence, are as follows: The plaintiff sues upon a written lease executed by the defendant, under which the latter entered into possession of certain premises for a term of one year from September 1, 1901. The facts alleged in the complaint are admitted and the defendant has established that on or about the 5th day of April, 1902, on the occasion of a visit of the plaintiff’s agent for the purpose of collecting the rent due for that month under the terms of the lease, the defendant’s wife
A long line of authorities supports the rule that “ a surrender is implied, and so effected by operation of law within the statute,* when another estate is created by the reversioner or remainderman with the assent of the termor, incompatible with the existing state or term” (Gray v. Kaufman Dairy & Ice Cream Co., 162 N. Y. 388, 395, revg. 16 App. Div. 631, and revg. the rule of 9 App. Div. 115), and it can hardly be questioned that the posting of a notice “ to let ” upon the premises in the occupation of the defendant, under the circumstances, would be incompatible with the existing state or term.
The plaintiff, knowing the intention of the defendant to leave, and having assented to his leaving, and while the premises were still in the possession of the defendant, who had paid his rent for the month of April, entered upon the property and posted a notice that the same was for rent, thus by an affirmative act assuming dominion over the premises, and must be deemed to have accepted
Reading Underhill v. Collins (132 N. Y. 269) in the light of the subsequent discussion in Gray v. Kaufman Dairy & Ice Cream Co. (9 App. Div. 115) and the same case in 162 New York, 388, we are persuaded that the defendant, under these facts, is not liable for the rent after the month for which the rent was paid in April, 1902, because the relation of landlord and tenant came to an end at that time.
In the Gray Case (162 N. Y. 395) it was conceded that the defendant’s offer of surrender was declined by the plaintiff, and that after the defendant’s abandonment of the premises the plaintiff relet the same in his own name to one Mary Ann Keogh for a term of three years and five months, and the court say: “ Such a situation, unqualified by other conditions, would create a surrender by operation of law.” In the case at bar the plaintiff accepted the offer of surrender, made use of the reserved power to post a notice of to let during the last ninety days of the term, and she cannot, because she has failed to find a tenant, collect the rent from this defendant during the remainder of the term for which thé lease was made.
The judgment should be reversed.
Goodrich, P. J., and Bartlett, J., concurred; Hirschberg, J., read for affirmance.
*.
2 B. S. 134, § 6, now contained in Laws of 1896, chap. 547, § 307.— [Rep.