
    Annie Stevens, Respondent, v. The City of New York, Appellant.
    Second Department,
    March 9, 1906.
    Landlord and tenant — action for1 use and occupation after notice to vacate — when recovery limited to rental stated in lease.
    When a tenant, after notice to vacate, holds over, the landlord’ may treat him as a trespasser, or as a tenant for another year’under the lease.
    When a complaint in an action, for use and occupation alleges that the tenant after such notice to vacate “ by and with the consent of the plaintiff used and occupied said premises,” an election tó treat - the defendant as a tenant is shown, and the'recovery is limited to the rental stated in the lease.
    When a complaint is framed for use and occupation with the consent of the landlord, wittiout reference to section 30Ó of the Real Property Law, said section is not available "in the action. . ’ • .
    . Appeal by the defendant, The City of Hew York, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court on the 3d day of’April, 1905.
    
      James D. Bell [Jerome W. Coombs with him on the brief], for the appellant.
    
      Brussel & Beebe, for the respondent.
   Miller, J.:

On the 1st day of January,. 1898, the defendant entered into, possession of certain premises as lessee of the plaintiff tinder, a written lease for the term of two years at the stipulated annual rental of $100, and continued in possession under yearly renewals until January 1, 1904. In December, 1903, the plaintiff gave the defendant written notice to vacate on January 1, 1904. Nothing further appears to have been done, the defendant continued in possession, and this action is brought for use and occupation for the year 1904, the plaintiff alleging in the complaint that “ the defendant by and with the consent of the plaintiff used and occupied said premises,” and the plaintiff has a judgment for $250 based upon proof of the rental value of the premises, although the defendant, while conceding its liability to the extent of $100, insisted upon the trial, as it now insists, that said sum stipulated in the lease was the measure of the recovery, and this appeal presents the single question whether the landlord who consents to the tenant holding over after the expiration of his term can recover more than the sum stipulated in the lease. Under the circumstances disclosed the plaintiff had the option to treat the defendant as a trespasser or as a tenant for another year, upon the terms of the prior lease. (Schuyler v. Smith, 51 N. Y. 309.) This proposition is so firmly established that it is useless to multiply authorities. The plaintiff did not treat the defendant as a trespasser, but consented to the holding over. The lease, therefore, must determine this controversy. '

The respondent is not aided by resort to section 200 of the Real Property Law (Laws of 1896, chap. 547). Without considering all of. the reasons why this statute has no application to the present controversy, it is sufficient to say that the complaint is framed for use and occupation without reference to the statute, and that there is no proof that the holding over was willful within the meaning of the statute, while the complaint expressly alleges that it was with the consent of the' plaintiff.

The judgment of the Municipal Court must be modified by deducting therefrom the sum of $150, and as thus Modified affirmed, without costs.

Hibschbeeg, P. J., Woodwabd, G-aynob and Rich, JJ., concurred.

Judgment of the Municipal Court modified by deducting therefrom the sum of $150, and as thus modified affirmed, without costs.  