
    Charles A. McInerney, Appellant, v. Louis Brown, Respondent.
    Second Department,
    November 18, 1910.
    Landlord arid tenant surrender by tenant — acceptance by landlord.
    Where after the -refusal of a tenant to execute a written: lease pursuant to an oral - agreement, and after his refusal to take possession, the landlord rents the . 'premises' to another for A term begriming On the same day, there is an acceptance of the tenant’s surrender so as to release ‘him from liability for rent.
    .' Ari’EAL by the. plain tiff, Charles A; .Mclneru.ey, fro.m a, judgment - of the Municipal Conyt. of the- city'of-®ew-York*-borough- of Brooklyn, in favor of the defendant, rendered on the 28th day of April, 1910.,, dismissing tlie complaint, .
    
      -Fesse Fuller-, Jr., for1 the appellant.-
    
      Frank G-. Wild, for the respondent.
   Burr, J.:

This action is brought tb'recover 'the sum of -fifty dollars, balance of rent claimed to be due for the .months of May, June and July, 1909, for the premises 340 Fifth avenue,'in the horbiigh of Brooklyn. This case was once before presented to this court, and the evidence then established an oral; agreement made on April 2,1909, by which the plaintiff let and defendant hired1 said premises for three months from the first day of May, with a privilege of renewal for three years, for which a. written lease was to be executed, and paid the sum of ten dollars on account of rent to accrue. We then decided that the agreement was valid so far as the: three months’ term was concerned, arid-reversed a judgment in favor of-defendant and ordered a new trial. (McInerney v. Brown, 136 App. Div. 752.) Upon the new trial substantially the same evidence was introduced upon-the part of plaintiff so far as the terms and conditions of the letting are concerned, and if this were all we should feel Constrained again to reverse the judgment dismissing the complaint rendered at the close of plaintiff’s case. But- upon this record defendant claims that the evidence, shows a surrender to and the acceptance by plaintiff as landlord of the demised premises on the first day of May, which surrender and acceptance operated to release him. It appears that between the "second and the fifteenth days of April plaintiff tendered to defendant a lease in writing which was for a term of three months from the first, day of May, with a. privilege of renewal for three-years, and that defendant declined, to execute the lease and never entered into possession of the premises described therein. It also appears that thereafter 'arid before.the first day of May plaintiff rented "the same premises to- another for one month, beginning on the first of May, and that: he received thirty dollars as rent therefor. - Although said tenant never entered into occupation of the premises, he was entitled to the ' occupation thereof for the said month. This Was an áct clearly inconsistent with -a subsisting relation of landlord and tenant between: plaintiff and defendant. There is no pretense that defendant agreed that plaintiff might relet the premises for-his-benefit, or that plaintiff notified him that lie-intended so to relet the ■ same ánd hold him liable for any deficiency. “A surrender of leased premises is created by operation of law when- the parties to the lease do some act so inconsistent-with the relation of landlord and tenant as to indicate that both have agreed to Consider the surrender as made.” (Levitt v. Zindler, 136 App. Div. 695, 696.) Or, as it is otherwise expressed, “ A surrendér is implied and so effected by .operation- of law * * *, when another estate is. created by the reversioner, or remainderman, with the. assent of the termor, incompatible with the existing estate or term.” (Coe v. Hobby, 72 N. Y. 141, 145; Gray v. Kaufman Dairy & I. C. Co., 162 id. 388, 394.) Defendant’s refusal to comply with the terms of his oral agreement or to enter.iiito .occupation of the premises indicated his assent to a surrender thereof. ' Plaintiff’s act, in letting, .the premises to another under the. circumstances here disclosed, was an act so inconsistent with the relation of landlord and tenant as to conclusively establish his acquiescence in defendant’s refusal and his acceptance of a surrender of the demised premises.

. The judgment appealed from should be affirmed, with costs.

Woodward, Thomas, Rich and Carr, JJ., concurred,

judgment of the Municipal Court affirmed, with costs.  