
    George W. Winant and another, Resp’ts, v. Nicholas E. Hines, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed March 7, 1887.)
    
    1. Landlord and tenant—Surrender of lease by operation of law.
    There can be no such thing as a surrender of a lease by operation of law except where the law declared that the happening of a certain event of itself puis an end to the lease, even in spite of the wishes and intentions of the par des.
    2. Same—Surrender will not be presumed—Re-letting—Effect of, upon liability of outgoing tenant—Estoppel.
    If it be made to appear that there was no agreement for the release of the outgoing tenant, the re-letting does not put an end to the tenant’s liability upon his lease, and i the tenant is unable to show that by agreement the lease was terminated, a surrender will not be presumed from the fact that the landlord has re-let the premises. Nor does such re-letting work an estoppel.
    3. Landlord to render loss as light as possible.
    , As it is the duty of the landlord to render his loss from the tenant’s breach of contract as light as possible; the landlord may re-let the premises wrongfully abandoned and credit upon the rent the tenant stipulated to pay, whatever he receives from the new tenant.
    It appears from the evidence that the plaintiffs, by verbal agreement, leased to the defendant certain premises for a term of one year, from May 1, 1884, at a monthly rent, of $52.50. The last of September, 1884, the defendant vacated the premises, and several days after his clerk delivered the keys to the plaintiff’s clerk. The last rent paid by defendant was for the month of September.
    The plaintiffs succeeded in re-letting the premises to a new tenant for the remainder of the term, from November 15 at the monthly rent of forty dollars, and brought this action in the district court of the city of New York to recover the balance due from defendant for rent up to May 1, 1885, after deducting the amount received from the new tenant. Judgment was given for the amount claimed, and defendants appealed to this court.
    
      George W. Gibbons,, for resp’t; Clark Brooke, for app’lt.
   Per Curiam.

If Oastler v. Henderson, decided by the English court of appeal, 2 Q. B., division 575 (21 Moak’s Eng. Rep., 277), be a precedent that we ought to follow, it is our duty to reduce the judgment, but not reverse it. In that case the. tenant, left the demised premises in the'early autumn of 1868, and sent the keys in December of that year to the landlord, who at once put up a bill, and employed an agent to re-let the premises, though a new*- tenant was not secured till March, 1872, and it was held that the landlord was entitled to recover from the tenant the rent that accrued between the date of the abandonment of the premises and the date of the re-letting to the new* tenant. Lord Justices Bramwell and Brett said that they were prepared to overrule Phene v. Popplewell, (12 C. B. N. S., 334), if that case were to be construed as deciding that the surrender of the lease must, as matter of law*, relate to the date at which the landlord received the keys. Applying the'decision in Oastler v. Henderson to the case before us, it would be our duty to modify the judgment appealed from, by reducing it to the amount that, would pay the rent for the six weeks that intervened between the quitting of the premises by the defendant and the re-letting of them to a new tenant, and to affirm the judgment as so modified. The-costs of the court, below would of course be retained by the respondent. But. we prefer a.different course, and unless the respondent should consent to the modification of the judgment in the manner that- we have indicated, we shall affirm the. judgment as. it was rendered, and give to the appellant leave to carry the case to the court of appeals. We shall grant that leave, because there is no reported case that is authority for the decision that we intend to make.

In England it appears to be settled by a number of decisions that “ by letting the premises to a new tenant the landlord does an act so inconsistent with the continuance of the tenant’s term that he is estopped from denying that it is at an end.” Observations of Cockburn, C. J., in Oastler v. Henderson.

It is true that Baron Parke, in Lyon v. Reed (13 M. & W., 284), clearly showed that there v^as no foundation in reason for holding that the letting to a new tenant worked .an estoppel in favor of the outgoing tenant, and that it was a palpable error to say that the re-letting to a new tenant effected a surrender by operation of law. Lord Chancellor Suydex, in Creagh v. Blood (1 Jones & La Touche, 133), expressed the same opinion.

There can be no such thing as a surrender by operation of law, except where the law declared that the happening of a certain event of itself puts an end to the lease, even in spite of the wishes and intentions of the parties.

There are cases in which the law attached certain consequences to certain acts irrespective of the intentions of the parties. Where a tenant accepts a lease, the law will not permit him to dispute his landlord’s title. Where a tenant, during the life of his lease, accepts a new lease, the law will not permit him to deny that the first lease had previously been surrendered. Where a bailee receives goods on deposit, the law will not permit him to deny the title of his bailor.

_ In these cases the law conclusively presumes that the rights of the parties aré such as both parties recognize as existing at the time they entered into relations with each •other. It will be seen that there is in every one of these cases the basis of an equitable estoppel.

“These conclusive presumptions were adopted by common consent, from motives of public policy, for the sake of greater certainty and the promotion of peace and quiet in the community; and, therefore, it is, that all corroborating evidence is dispensed with and all opposing evidence is forbidden.” G-reenleaf on Evidence, section 15.

Where a tenant has abandoned the premises, and notified his landlord that he has done so, the re-letting does not evict him nor prejudice him in any way. If he leaves the premises without the assent of his landlord, he cannot say that he has been induced to alter his situation for the worse in consequence of his landlord’s acts or assurances. It cannot be argued that the tenant abandoned the premises because he expected,- or had a right,to expect, that the landlord would keep them unoccupied, and, therefore, there is no ground ior saying that when the landlord re-lets the re-letting works an estoppel.

There is no basis for an equitable estoppel, because the tenant is not induced by the landlord to change his situation, he changes of his own motion, to suit himself. When he notifies the landlord that he has quit the premises for good, it is idle to say that he is excluded from them by the act of the landlord in re-letting them.

Although this reasoning is clear, yet the English courts, have felt themselves compelled to follow the case of Thomas v. Cook (2 B. & Aid., 119), which held that the re-letting of the premises to a third party absolutely estopped the landlord from claiming rent subsequently accruing from the deserting tenant. The discussions in the English courts show very clearly that the judges were unable to explain exactly in what way an estoppel was worked, but after a lame discussion they have generally contented themselves with the assertion that somehow or other the re-letting effected a surrender by operation of law.

Indeed, the queen’s bench has gone to a point to which no American court can follow, for in Nickells v. Atherstone (10 Q. B., 944) it was decided that the re-letting worked a surrender of the lease by operation of law, notwithstanding that the tenant, after quitting the premises, sent the landlord a letter requesting him to re-let them.

Wharton, in his Treatise on the Law of Evidence, section 860, says: That these English decisions make a very important extension of the construction of the words “operation of law.”

Our American courts have held that where the landlord re-let with the consent of the outgoing tenant, the re-letting could not be regarded as working a surrender by operation of law. They have also held that where the landlord notified the outgoing tenant that he would not release him, but would re-let the premises at his risk and on his account, the re-letting did not effect a surrender by operation of law.

These decisions reject in toto the idea that the re-letting terminates the lease by judgment of the law, without regard to the intentions of the parties, and make the.question of surrender a question of fact, and not a.question of law. They make the surrender a question of intent. The inquiry is, did the tenant intend to surrender the lease, and did the landlord intend to accept a surrender?

The re-letting of the premises by the landlord raises a. presumption that he intended to terminate the lease, and to discharge the tenant from further liability, but that presumption, like any other presumption of fact, may be overthrown' by evidence. Hence if it be madé to appear that, there was no agreement expressed or implied for the ralease of the outgoing tenant, it is the law of the state of Hew York that the re-letting does not put an end to that tenants’ liability upon his lease.

But there is reason for our going still further than any court has yet gone, and for our holding that in Hew York, if the tenant is unable to show that by agreement with the landlord the lease was terminated, a surrender will not be presumed from the fact that the landlord has re-let the demised premises. Though in other jurisdictions the doctrine is not unknown, yet it is in Hew York that the greatest effect is given to the rule that a party injured by another’s breach of contract must .make reasonable efforts to render the injury as light as possible.

We think that that rule is applicable to a breach of the contract of hiring and letting. It has been said that a, landlord cannot have two different tenants of the same premises at one time. As well might it be said that "& servant wrongfully discharged could not have two different masters at one time; and yet no one ever suggested that the servant could not recover damages against the master who wrongfully discharged him, though before the term, of the original employment had expired he sought and. obtained a situation under a new master.

We think that upon that ground in Hew York it is the duty of the landlord to render his loss from the tenant* breach of contract as light as possible; the landlord may-re-let the premises that his tenant has wrongfully abandoned^ and credit upon the rent that the tenant has stipulated is pay whatever he receives from the new tenant. All difficulty on the subject is removed if the demand of ths landlord is regarded as a claim for damages for breach-sf the contract of hiring. -

Of course we do not mean that the parties may not, by consent, cancel the lease. Where the lease is terminates, by agreement the tenant is no longer liable.

The judgment appealed from will be affirmed unless fes respondent elects that it shall be modified in conformity with the suggestions that we have made.  