
    Excelsior Steam Power Company, Respondent, v. William M. Halsted, Appellant.
    
      Landlord and tenant — what acts constitute a holding over — when a question of fact — surrender of possession.
    
    In an action brought to recover the rent of certain premises, from which the defendant at the expiration of his term as tenant thereof had moved all his property with the exception of one press, and the key of which he had delivered to the person in charge of the building on the last day of the term, it appeared that two days later some of the employees of the defendant went upon the premises without his knowledge and used the press, and because' of this act the plaintiff claimed that the defendant held over and was liable for the rent for another year.
    
      Held, that it was a question for the jury upon the facts to determine whether the defendant had held over;
    That no surrender was necessary, as the term was at an end, and that a mere vacation of the premises was all that could be required of the defendant.
    Appeal by the defendant, William M. Halsted, from a judgment of the Superior Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 18th day of November, 1895, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 25th day of November, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover the rent of certain premises leased by the plaintiff to the defendant upon the ground that he had held over after the- expiration of his term.
    
      George D. Beattys, for the appellant.
    
      Ambrose G. Todd, for the respondent.
   Van Brunt, P. J.:

The question as to the right of the defendant to have the issue as to his holding over submitted to the jury seems to have been settled by the decision of this court in the case of Frost v. The Akron Iron Co. (1 App. Div. 449). In that case it was held that the mere leaving upon the premises of certain property belonging to the tenant did not of necessity constitute a holding over.

It appears from the evidence in this case that the defendant had removed all his property from the premises with the exception of one press, and had delivered the key to the person who was in charge of the building. This occurred upon the last day of the term for which the premises had been leased. Upon the second day after the happening of these events, some of the employees of the defendant, without his knowledge, went upon the premises and used the press which had been left there; and it would appear from the record that this fact coming to the knowledge of the plaintiff, it conceived the idea of claiming that the defendant had held over; and on the 16th of May, 1894, a letter was sent to the defendant which stated as follows: It having come to the knowledge of the Excelsior Steam Power Company that you have used and occupied the Gold, street premises, described in its lease to you * * * after the-expiration of the term therein mentioned, I beg to notify you on its behalf that it has elected to treat you as a tenant for another year upon the terms of the said lease. You may accordingly avoid suit by sending me the rent for the current month.”

There is no claim but that the key had been returned, that the premises had been substantially evacuated, and that the landlord understood that the tenant did not intend to hold over; but the accidental entry on the premises, without the knowledge of the defendant, by two of his employees, was seized upon as a pretext to claim a tenancy for the whole year.

Under these circumstances, it was a question for the jury to determine as to whether the tenant had held over, and thus was liable for the rent for another year.

Considerable has been said about a surrender of the premises. No surrender was necessary; a mere vacation of the premises was-all that was required. The term “ surrender ” applies to the termination of a running term before it has expired by the acceptance on the part of the landlord of a surrender of the premises. In the case at bar the term was at an end. The tenant had moved out, with the exception of this one piece of personal property. There was no intention on his part to continue his occupancy of the premises. He did all that he could to place the same in the possession of the landlord, giving up the key to the person in charge of the building.

We think that it was error for the court to refuse to submit to the jury the question as to whether there was in fact any holding over.

The judgment should be .reversed and a new trial ordered, with •costs to the appellant to abide the event.

Barrett, Rumsey, O’Brien and Ingraham, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  