
    Andrew S. Thorp, Resp’t, v. John M. Philbin, App’lt.
    
      (City Court of Few York, General Term,,
    
    
      Filed January 30, 1888.)
    
    1. Landlord and tenant—Rights of.
    Where, by the terms .of a lease, the tenant’s term expired on May 1, 1837, at twelve o’clock m., and the landlord was entitled to possession at that time, upon failure of the tenant to remove and yield up his possession it was at the option of the landlord either to treat the tenant as one holding over under the same terms and conditions as contained in the original agreement, or as a trespasser, provided no'new agreement had heen made for a further term.
    2. Same—When assent implied to terms imposed by landlord.
    Where landlord, on April twenty-eighth, no now agreement up to that time having heen made, notified the tenant that he must vacate the premises on May first, and, on the same day, notified tenant that the rent for ensuing year would be §3,400, no reply being made by the tenant to this notice, but he continuing in the occupancy of and in possession of the premise i on May 1, 1887, and retaining possession of the same from May 1 to October 1, 1887, with notice that the rent would he §3,400 per annum, held, that this con ti:utcd an implied assent on the part of the tenant to the terms imposed by the landlord, and, in the absence cf any specified time for the payment of the rent, the re :t would he payable quarterly and two quarters rent would he due October first.
    Appeal from a judgment in favor of plaintiff, entered on the verdict of a jury, November 25, 1887, and from the order denying a new trial herein.
    [No such order, however, appears in the case and exceptions on appeal, upon which such appeal was heard.]
    This action was brought to recover six months rent of premises No. 1 East Seventeenth street, from May 1 to October 1, 1887, at $2,400 per annum, payable monthly in advance.
    The defendant, on the 4th day of May, 1886, hired from the plaintiff, by an agreement in writing and under seal, the store No. 1 East Seventeenth street, New York city, then occupied by defendant, for the term of one year from May 1, 1886, at the yearly rent of $1,800, payable monthly in advance. (Plaintiff’s exhibit No. 1.)
    R. D. Harris, the attorney for the defendant, became surety thereon for the punctual payment of the rent and performance of the covenants therein.
    Defendant took possession under said lease and still remains in possession thereof; the said R. D. Harris, acted for the defendant and by his authority in all defendant’s relations with the plaintiff concerning the premises.
    Prior to January 31, 1887, plaintiff wrote to said R. D. Harris, “ asking what Mr. Philbin proposed to do for the next year, and stating he would be willing to rent the store, providing the rent would be $3,600.”
    R. D. 'Harris on January 31, 1887, replied to said letter and stated therein as follows: “ Your note of some days ago received, I can only say that Mr. Philbin does not desire the store for another year for any such price as you named in your letter.”
    On April 22, 1887, said Harris again wrote to the plaintiff a letter in which he inquired: “Have you rented your place? If not, upon what terms will you consent that he (Philbin), remain for a month or six weeks? Please answer before Wednesday next.”
    Plaintiff on April 28, 1887, received a telegram from said Harris, as follows: “Do I understand that you insist upon premises being vacated on May first. I await for answer to my letter.”
    On the same day, April 28, 1887, the plaintiff sent a telegram to Harris, as follows: “Yours just received. Will not rent for short term. Price by year, $2,400.”
    On May third plaintiff called at the office of said Harris to collect the rent then due, which was not paid, on which day, and, also, on the following day efforts were made by the said Harris in an interview with plaintiff and with his attorney, Mr. Morrison, to effect a compromise as to the amount of rent, which efforts were unsuccessful.
    On May 6, 1887, plaintiff wrote a letter to said Harris in which he stated as follows: “To save time and unnecessary correspondence, I will say that I positively refuse to rent the store for any shorter term, than one year and that the lowest rent will be $2,400 per year.”
    
      Andrew 8. Thorp, for resp.’t; B. D. Harris, for app’lt.
   McGowr, J.

By the terms of the lease the defendant’s term expired on May 1, 1887, at twelve o’clock m., and plaintiff was entitled to possession at that time. Upon failure of defendant to remove therefrom and yield up the possession at the expiration of his term, it was at the option of the plaintiff either to treat the defendant as a tenant holding over under the same terms and conditions as contained in the original agreement or as a trespasser, provided no new agreement had been made for a further term.

Plaintiff, on the 28th of April, no new agreement having up to that date been made, notified defendant that he must vacate the premises on May 1st, and on the same day also notified defendant that the rent for the premises for the ensuing year would be $2,400. No reply was made by defendant to this notice, but defendant continued in the occupancy of and in possession of said premises on the 1st day of May, 1887, and retained possession of the same from May 1 to October 1, 1887, with notice that the rent of same would be $2,400 per annum. This constituted an implied assent on the part of the defendant to the terms imposed by the landlord, and in the absence of any specified time for the payment of the rent, the rent would be payable quarterly and two quarters’ rent was due on October 1, 1887.

Had the plaintiff on the 3d of May rented the premises (with the defendant in possession) to any other person, and attempted to dispossess the defendant on the ground of defendant’s holding over without the permission of the plaintiff, defendant could have successfully defended his right of possession by proving plaintiff’s notice to him of the increased rent, and defendant’s assenting thereto, by remaining in possession and occupying the premises after such notice.

I find no errors committed on the part of the justice before whom the action was tried in the rulings made by him ' which require a reversal of the judgment, and the judgment appealed from must therefore be affirmed, with costs.

Pitshke, J.,  