Crane v. Edwards

Woodward, J.:

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 informed the agent that they were going to move out, whereupon the agent went to the defendant and entered into a heated conversation, which terminated in the agent telling the defendant: “ Well, move, I am glad of it.” Some days subsequent to this conversation a real estate agent, acting as the agent of the plaintiff’s agent and by the latter’s direction, posted a sign upon the premises, stating that the same were to let. The defendant did not consent to the placing of this sign upon the premises, and did not know of its being placed there until after it was posted, and he then found a place and moved into it, sending the key, by the direction of the real estate agent, to the office of the latter. There is a clause in the lease, which is in evidence, which provides that if the premises become vacant during the term, the landlord may rent the same as the agent of the tenant, and the agent of. the plaintiff claims that he called the defendant’s attention to this lease at the time of the conversation and told the defendant that he would be held to the terms of the lease, but this is denied by the defendant, who is corroborated by a disinterested witness, and there is no room to doubt that the defendant was told to move, and that plaintiff’s agent expressed satisfaction at the prospect of his going, and that plaintiff’s agent subsequently directed the posting of the “ to let ” notice.

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 the surrender. The parties agreed in their lease, which the plaintiff put in evidence, that “ on any day within ninety days preceding the expiration of the term ” the lessee “ will permit the usual notice of to let or for sale to be placed on the premises, and remain thereon where placed, without molestation,” and the plaintiff having elected to place such a sign upon the premises, and the defendant having permitted the same to remain there during the time that he occupied the premises, which was within ninety days of the expiration of the term as fixed by the conditions of the surrender, though not within ninety days of the expiration of the term fixed by the lease, she must be deemed to have consented to the surrender. Under no other condition could she have had the right to post the notice of to let.

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.