
    150 Central Park South, Inc., Appellant, v. Ritz Carlton Valet Service, Inc., Respondent.
    First Department,
    December 20, 1949.
    
      
      Stephen S. Bernstein of counsel (Sidney Kant with him on the brief; McLaughlin & Stern, attorneys), for appellant.
    
      Arthur J. W. Hilly of counsel (Isaac Goodfriend with him on the brief; Saul Bergman, attorney), for respondent.
   Cohn, J.

After the expiration date of a lease, the term of which had been extended to September 30, 1947, the landlord owner of the hotel known as Hampshire House, brought this summary holdover proceeding against the tenant. It was alleged that the premises occupied by the tenant as a valet shop were sought by the landlord for its immediate and personal use (Commercial Rent Law, L. 1945, ch. 3, § 8, as amd.).

In its answer to the petition the tenant affirmatively pleaded that in August, 1946, at the request of the landlord it moved from the space it had been occupying on the third floor of the Hampshire House to certain space in the basement thereof relying on the landlord’s assurance that the tenant could remain as a tenant so long as the 150 Central Park South, Inc., the landlord herein, owned the hotel. It is asserted that that corporation still owns the Hampshire House and, therefore, tenant is not a holdover.

On the trial of the case two issues were submitted by the court to a jury: (1) Whether the landlord sought in good faith to recover possession of the demised premises for its immediate and personal use, and (2) Whether an oral agreement had been made whereby the landlord had agreed to permit the tenant to remain as long as the landlord owned or was in any way connected with the Hampshire House. The landlord took exception to the submission of either question to the jury. Upon the jury’s verdict in favor of the tenant, the court dismissed the landlord’s petition.

The record shows that the vice-president of the landlord testified that it desired the space occupied by the tenant for its own immediate use for the purpose of operating the valet shop itself in order to improve the service. Save for the portion of the hotel occupied by this tenant, the building in its entirety was used by the landlord for hotel purposes. There was no evidence establishing lack of good faith on the part of the landlord in seeking to recover the premises for its immediate, personal use, nor was any fact adduced which might tend to impair the good faith of the landlord. In a situation like the present involving this kind of service in a hotel, the jury was without authority to arbitrarily cast out the testimony of the landlord’s witnesses where, as here, there was nothing in the case to warrant its disbelief (Wood v. Wise, 153 App. Div. 223, 227, affd. 208 N. Y. 586). Upon this branch of the case the landlord made out a case entitling it to possession of the premises (Coyne v. Silvers, 187 Misc. 357, 359, affd. 271 App. Div. 777; 1407 Broadway Realty Corp. v. Sheby, 191 Misc. 104, affd. 273 App. Div. 1003).

The position which the tenant takes on this appeal in relation to its defense is that although its written lease in August, 1946, had more than a year to run, an oral lease was created at that time upon the tenant’s removal to the basement space in the hotel.

It is urged by the tenant that the oral lease does not violate section 242 of the Eeal Property Law because the agreement by its terms could have been performed within a year. This statute so far as pertinent reads as follows: “ An estate or interest in real property, other than a lease for a term not exceeding one year * * * can not be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing.”

Section 31 of the Personal Property Law provides in part:

“ Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking;
“ 1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime ”.

Unlike the provisions of the Personal Property Law quoted, there is nothing in the Real Property statute which suggests that an oral lease is void if it is not to be performed within one year from the making thereof. Accordingly, whether or not the oral lease involved here was capable of being fully performed within a year is of no importance so far as section 242 of Real Property Law is concerned. That statute very clearly indicates that a lease for a term exceeding a year cannot be created except by a writing subscribed by the lessor (300 West End Ave. Corp. v. Warner, 250 N. Y. 221, 228).

At the commencement of the present summary proceeding more than one year had elapsed since the date defendant asserts the oral lease, upon which it relies, was made. As one year was the maximum period for which an oral lease could have been created or granted, by virtue of the provisions of section 242 of the Real Property Law, the defense of the tenant must fail.

In the circumstances neither of the two aforementioned issues should have been submitted to the jury. The trial court instead should have directed a verdict in favor of the landlord.

The determination of the Appellate Term should be reversed, with costs to the landlord appellant and a final order directed in favor of the landlord appellant, with costs.

Dore, J. P.

(dissenting). When the tenant at the landlord’s request moved from the third floor to the basement, the tenant had a written lease with the owner for a period of five years expiring September 30,1947. That lease was a five-year renewal of a previous five-year lease made September 30, 1937, between the tenant and the trustees, who were then owners of the building. The renewal was on the same terms as the original agreement with one immaterial change. On October 9, 1942, the trustees in a letter to defendant stated that they were 11 pleased to renew ” for an additional five years the agreement that terminated on September 30, 1947. The tenant rendered the same services to the hotel that he was giving at the time herein in question.

On the landlord’s own testimony with regard to the arrangement made in August, 1946, by which the tenant moved to the basement, the same terms and conditions ” of the written lease then exiting between the parties were to continue. The landlord recognized and acted on the written lease when it gave its notice of August 1, 1947 stating that the lease between the parties expired September 30, 1947, and would not be renewed.

Assuming for the purposes of this appeal that the tenant’s alleged oral lease made in August, 1946, was void under the Statute of Frauds, the tenant, on the landlord’s own testimony, continued occupancy as lessee in the hotel under the written lease expiring’ September 30, 1947. Accordingly, under the emergency rent law, the tenant became a statutory tenant after termination of the lease and could not be dispossessed except on one of the grounds permitted in the statute. The only ground relied on by the landlord was the claim that it wished to operate the valet shop and service itself because the tenant’s service was unsatisfactory. That was the theory on which the case was tried and on which it was submitted to the jury. On that issue the landlord had the burden of proof. On such issue of good faith which was resolved in the tenant’s favor, the jury had the right to consider, and doubtless did, the evidence showing that the same tenant had rendered services in the hotel for a period of nearly ten years to the entire satisfaction of the trustees, the prior owners, who had for that reason renewed a five-year lease in the tenant’s favor.

Defendant was not a mere employee of the hotel but a tenant with all the rights that the emergency rent laws give to a tenant.

Accordingly, I dissent and vote to affirm the determination of the Appellate Term affirming the final order of the Municipal Court in the tenant’s favor dismissing the landlord’s petition.

Callahan, Van Voorhis and Shientag, JJ., concur with Cohn, J.; Dobe J., dissents and votes to affirm, in opinion.

Determination reversed, with costs to the landlord appellant and a final order directed to he entered in favor of the landlord appellant, with costs. Settle order on notice. [See post, p. 894.]  