
    James Lever, Resp’t, v. Buel L. Foote, App’lt.
    
      (Supreme Gourt, General Term, Third Department,
    
    
      Filed December 4, 1894.)
    
    Trial—Direction or verdict.
    Where the evidence is conflicting as to the length of the term, it is error to direct a verdict for the lessee in an action against his lessor for possession.
    Appeal from a judgment in favor of the plaintiff.
    
      John I. Gilbert, for app’lt; John P. Kellas, for resp’t.
   Putnam, J.

From the evidence, it appears that plaintiff, as tenant of defendant, occupied the land, to recover possession of which the action was brought, from October 22 (or 19), 1892, for one year. Plaintiff testified that in a conversation with defendant in September, 1893, he made an agreement with him to lease the same premises for a second year. He is corroborated in this regard by another witness. The defendant, on October 20, 1893, took possession of a part of the premises, and. on the same day this action was brought. The defendant denied that at the conversation in 1893 he rented the premises to plaintiff for a year, testifying that plaintiff only wanted the house until spring; and his witness King, in narrating what transpired at said conversation in September, 1893, testifies that plaintiff said he wanted the house until next spring, and that defendant did not say yes or no.

The trial court directed a verdict for the plaintiff for the recovery of the possession of the premises in question. We think he erred in his disposition of the case. It was, under the evidence, a question of fact for the jury whether the lease was extended until the spring of 1894, or for one year. If for one year, the verdict and judgment were right, as to awarding possession of the premises to plaintiff. If the lease was only extended until spring, the action being tried on the 14th of March, 1894, plaintiff was not entitled to a j udgment for the possession of the premises, but to the verdict and judgment as provided for in § 1520 of the Code of Civil Procedure. In any event, the judgment should have determined the duration of the term for which plaintiff could hold the premises. Code Civ. Proc. § 1519. The error in the disposition of the case, above pointed out, was material. Under the judgment, plaintiff could properly have held possession of the premises until October, 1894, while, if the question of fact had been submitted to the jury, they might have found that the lease terminated on or before the 1st of March, 1894.

We are doubtful whether, in any view, the court should have directed a verdict. According to the plaintiff’s statement, he rented on October 22, 1892, the premises for one year, at the monthly rent of six dollars, payable at the end of each month, and occupied them until the last of September, 1893, when he had a conversation with defendant, and arranged for another year’s occupancy. He then paid defendant six dollars; presumably, the rent due for the month ending in September, 1893. If plaintiff’s statement was true, he was legally in occupation of the premises, as tenant until October 22, 1893, under the first year’s lease,-and defendant unlawfully evicted him on October 20th, two days before the term expired; and hence he was entitled to maintain the action, either as tenant under the first lease, or under the extended tenancy. On the other hand, defendant’s witness King swears that, when plaintiff proposed to rent the premises until spring, defendant made no answer. It was then a question of fact for the jury whether the minds of the parties met, and whether any new lease was created. While, from all the facts and testimony, it is probable that it was understood that plaintiff was to occupy the premises, after the end of his first tenancy, it was not so certain that the court could determine the question as one of law. The rent paid in October was presumably the rent due under the first tenancy. The first lease, according to plaintiff, ceased on October 22, 1893. But defendant testifies that the agreement was that the rent (which was equivalent to saying “ tenancy ”) was to commence on the 19th. If the plaintiff’s tenancy commenced on October 19, 1892, and terminated October 19, 1893, and the tenancy was not extended for- another term, the occupation of the premises in question by defendant, for which this action was brought, may have been on the day after the expiration of the lease. It is not improbable that on the trial the jury may take another view of the-testimony, and conclude that plaintiff was legally in occupation of the premises at the time of the intrusion of defendant thereon, either under the first lease or a renewal thereof. We think, however, that the evidence was not so clear and certain that the court could take the questions involved in the case from the jury. It follows that the j udgment should be reversed, and a new trial granted, with the costs of the appeal to the appellant, to abide the-event.

All concur.  