The defendant rented the plaintiff’s store, 415 Graham avenue, under a letting apparently not in writing. Whatever the term was, the defendant was at liberty to surrender the premises after April, 1909. In April he agreed with plaintiff to hire the store for a year, as plaintiff states; for the month of May, as defendant testifies. The defendant’s evidence shows that he had rented another store, hut could not move into it at once, and that for this reason the plaintiff allowed him to remain in the store in question for May. 'In support of his evidence defendant produced a form of receipt similar to that given for the May rent. On this receipt is printed “ (Let for One Month Only.) ” I think that the court was justified in holding that the letting was for a year. But the more serious question is, whether there was a surrender. The defendant supports the defense of surrender by proof (1) that he gave the key to the plaintiff. He did give it to the plaintiff or send it to his office; (2) that the plaintiff put up a “ To Let ” sign ; (3) that the plaintiff permitted a woman, who occupied an adjoining store, to use the store from the twenty-fourth or twenty-fifth of June until the sixth or seventh of July; (4) that the plaintiff did not demand the rent monthly, as he had theretofore done, although it appears that he did demand it after the term expired.
The plaintiff testified that, previous to defendant’s vacation of the store, the former told him that he would hold him responsible for the year’s rental of the store if he moved out. From these facts does the law imply a surrender and acceptance ? Ho such implication would arise from the acts done, such as receiving the keys and advertising to let, but do such acts accompanied by the permission to a third party to occupy temporarily, operate as an acceptance ? The plaintiff, by stating that he would hold defendant for the rent, disavowed acceptance, but he did not state that he would relet the premises and hold the defendant for deficiency, nor was anything said or done that gave the plaintiff such right to proceed and at the same time hold the defendant for the unpaid rent. ( Underhill v. Collins, 132 N. Y. 269 ; Gray v. Kaufman Dairy & Ice Cream Co., 162 id. 388; Levitt v. Zindler, 136 App. Div. 695.) So the question comes to this, was the act of allowing another to occupy gratuitously the premises for the time stated an acceptance of the
The judgment should be reversed and a new trial ordered, costs to abide the event.
Jeeks, P. J., Hiesohbeeg, Bdee, Thomas and Rioh, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.