
    Julia Karsch, Respondent, v. Albert P. Kalabza and Others, Appellants.
    Second Department,
    April 21, 1911.
    Landlord and tenant — occupancy under void lease — implied agreement — when from year to year.
    Where a tenant enters upon premises under avoid lease he becomes liable only for the value of the use and occupation during his possession, unless a new agreement be made or implied by law.
    
      Where, however, the entry junder the void agreement is with the landlord’s consent, and the terms of the agreement according to which the ■ tenant pays rent provide fjor an annual rental, then the law will imply a tenancy from year to year;
    So where tenants enter undjer a void lease providing for a. rental of $1,000 a year and pay each month one-twelfth of that sum, the law implies a renting toy the year. | ■
    Appeal by the defendants, Albert P. Kalabza and others, from a judgment of the! Municipal Court of the city of New Y ork, borough of - Queeris, in favor of the plaintiff, rendered on the 25th day of November, 1910.
    
      L. J. Harvey, for the .appellants.
    
      William Rasquin, Jr, for the respondent.
   Carr, J.:

This is an appeal from a judgment of the Municipal Court ■ in the borough of Queens in favor of the plaintiff in an action brought to recover rent for' certain premises in the borough of Manhattan for the month of June, 1910.- The pleadings were oral. The undisputed fa^ts are as follows: The plaintiff agreed to lease the.premises iri Question to the defendants for the term of three years, at an anriual rental of $1,000. A written lease was. to be executed and, pending its drafting and execution, the defendants went into occupation of the premises on October. 1, 1910. Subsequently the ¡plaintiff tendered a written lease executed by herself, but the defendants refused to sign it, damn ing that the landlord had neglected to put the premises in such . a condition of repair as had been agreed upon mutually. They continued to occupy the! premises until May- 31, 1910, when .they removed therefrom; During their occupancy of the premises they paid each month rent at the rate of $83.33, which was one-tw.elfth of the annual rent fixed upori in the oral agreement which preceded their entry into the premises. The question now in controversy is whether their occupancy of the premises was under a renting by the month or by the year, as it is mutually conceded that the oral agreement for three years was void under thej Statute of Frauds. (See Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], §§ 242, 259.) The general rulej is' that where a tenant enters into occupation under a void agreement of lease, he becomes liable only for the value of the use and occupation of ■ the premises during his possession thereof, unless a new agreement be made or implied by law. (Thomas v. Nelson, 69 N. Y. 118.) Where, however, the entry under the void agreement is with the consent of the landlord, and the tenant pays rents according to the terms of that, agreement, if the terms provide for an annual rental, then the law will imply a tenancy from year to year. (Reeder v. Sayre, 70 N. Y. 180, 184; Laughran v. Smith, 75 id. 205; Talamo v. Spitzmiller, 120 id. 37.) As was said in Talamo v. Spitzmiller (supra): “While it is not required that a new contract be made in express terms, there must be something from which it may be inferred, something which tends to show that it is within the intention of the parties. The payment and receipt of an installment or aliquot part of the annual rent is evidence, of such understanding, and goes in support of a yearly tenancy, and without explanation to the contrary it is controlling evidence for that purpose.”

In the case at bar the only evidence as to rental agreed upon orally before the entry of the defendants into the premises was of a rental of $1,000 a year. It appears undisputed that the rent actually paid was $83.33 each month, or a one-twelfth part of the annual rental previously agreed upon. Hence, under the authority above cited, we have a case of a tenancy for a year. There are cases where tenancy by the month was implied where entry was made under a void lease, hut all of these cases arose under circumstances where the rental payable under the void agreement was a monthly rental and not an annual rental payable in bulk or in installments. (Fink v. Standard Bread Co., 61 Misc. Rep. 626; Israelson v. Wollenberg, 63 id. 293; Gilfoyle v. Cahill, 18 id. 68; Wilson v. Taylor, 8 Daly, 253.)

At the trial of this action the defendants and appellants sought to show a constructive eviction from the premises through failure of the landlord to make some repairs in the skylights of the building, and through a failure to furnish steam power for the defendants’ use on a certain occasion. On these questions the evidence conflicted, and there is no apparent reason why the findings of the trial court thereon should be disturbed here, as ¡they are not against the weight of evidence. j

The judgment should be affirmed, with costs.

Jerks, P. J., Thomas,'Woodward and Rich, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  