
    Ballou v. Carton et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    November, 1889.)
    Landlord and Tenant—Surrender op Lease.
    Plaintiff’s testator leased certain premises to defendants, who sublet for a less term, and at a less rent, reserving certain privileges. Plaintiff’s testator then notified the sublessees that defendants owed him rent, and that they should pay him what rent they might owe defendants, which they did. After the sublease expired, the sublessees continued in possession, and paid plaintiff the same rent they had paid under their lease from defendants, and plaintiff receipted to them for the rent, without any reference to defendants. Plaintiff at no time accepted the sub-lessees in the place of defendants. Held, that there was no surrender of the term.
    Appeal from circuit court, Oneida county.
    This action is upon a lease for rent. The defense is surrender by operation of law. On the 1st January, 1884, Theodore P. Ballou, plaintiff’s testator, and the defendants, executed under their hands and seals a lease by which Ballou rented to the defendants for the term of 6i) years from January 1,1884, certain premises in Utica, called a wood shop and store, at the yearly rent of $660, payable quarterly. The defendants entered into possession, and remained to November 1, 1884. At that date, having' become insolvent, they subleased to one Hubley for the term of six months, for the rent of $250, payable, one-half, February 1,1885, and the other half, May 1, 1885. In. the lease to Hubley, the defendants reserved to themselves certain privileges in connection with the use of the store. Hubley, or his firm, Hubley & Baxter, went into possession, and have so continued down to the time of the trial. On the 30th January, 1885, Ballou notified Hubley & Baxter that there was •due him for rent of the premises under the lease to defendants one quarter, being $165, due November 1,1884, and one quarter dueFebruary 1,1885, and that they should pay him any rent they owed for the premises, and forbade their paying to any one else. They thereupon paid to Ballou the rent on the under-lease, his receipt given to them on the last quarter reading as follows: “$125. Utica, May 2, 1885. Received from Hubley & Baxter their note for $125, and interest at three months, for rent to May 1, for the Meadow-Street building 3 and 5. T. P. Ballou.” At the expiration of the under-lease, May 1, 1885, Hubley & Baxter saw Ballou and talked with him on the subject of their continuing in possession. The conversation itself” is not shown. They remained in possession, paid Ballou $125 quarterly, he going to the premises for it, and receipting it to the firm. The receipt given August 1,1885, reads: “Received from-Hubley & Baxter $125 for one quarter’s rent, Meadow street. T. P. Ballou. ” The defendants knew that Hubley & Baxter were occupying after May 1,1885, and were paying rent to Ballou, and made no objection. Ballou testified, in a deposition taken before trial, that after May 1, 1885, Hubley & Baxter would not pay a larger rent than the under-lease ■ specified. Hubley testifies generally that Hubley & Baxter never had any lease from Ballou. In June, 1885, Ballou brought an action in the supreme court against these defendants for the balance of the rent under the lease to May 1, 1885, after crediting the $125 for two quarters received from Hubley & Baxter, and recovered judgment therefor in February, 1886. The present action is for the rent due under the lease August 1 and November 1, 1885, and February 1, May 1, and November 1,1886, less the $125 per quarter paid by Hubley & Baxter, the difference being $40 per quarter. After the commencement ■of this action T. P. Ballou died, and the plaintiff was substituted in his stead. There was judgment for plaintiff. Defendants appeal.
    Argued before Hardin, P. J„ and Martin and Merwin, JJ.
    
      
      C. D. Adams, for appellants. E. J. Richardson, for respondent.
   Merwin, J.

The claim of the defendants is that from, and after May 1, 1885, the lease and term were surrendered by operation of law, and the defendants thereby discharged from all liability for rent. There was no express surrender. There was no agreement between the defendants and Ballou on the subject. The defendants subleased to Hubley, such lease expiring May 1, 1885. This action is for rent accruing after that date, over and above what Ballou received from Hubley & Baxter. The latter remained in possession without objection from defendants, but no arrangement between them and defendants, or between them and Ballou, is shown. They stayed there, and paid to Ballou $125 a quarter, being at the same rate they paid prior to May 1, 1885. The main circumstance to support the position of the defendants is the receipt by Ballou of the rent from Hubley & Baxter. In Talbot v. Whipple, 14 Allen, 180, it is said that any acts, which are equivalent to an agreement on the part of a tenant to abandon and on the part of the landlord to resume possession of demised premises, amount to a surrender of a term by operation of law. There must be some act which implies that botli parties have agreed to consider the surrender as made. Beall v. White, 94 U. S. 389. A surrender is implied when another estate is created by the reversioner or remainder-man, with the assent of the termor, incompatible with the existing estate or term. Coe v. Hobby, 72 N. Y. 145; Smith v. Kerr, 108 N. Y. 36, 15 N. E. Rep. 70. It will not be implied against the intent of the parties, as manifested by their acts. In Smith v. Nicer, 2 Barb. 180, it is said by Judge Harris that a lessor, who has consented to a change of tenancy, and has permitted a change of occupation, and received rent from the new tenant as an original and not as a sub tenant, cannot afterwards charge the original tenant for rent accruing during the occupation of the new tenant. A similar rule was applied in Page v. Ellsworth, 44 Barb. 636, as applicable to a party holding over after the expiration of the term. Upon this subject Judge Mullen, in Bedford v. Terhune, 30 N. Y. 463, after referring to several eases, says: “It will be seen that in all of the cases a mutual agreement between the lessor and the original lessee that the lease terminates must be shown. It is not necessary that the agreement should be express; it may be inferred from the conduct of the parties. The occupancy by some other than the lessee is, of course, a circumstance to show a surrender; but as the new occupant may enter as the tenant of the lessee, or as his assignee, or even as a trespasser, and thus his occupancy be consistent with the continuance of the first lease, it is absolutely essential that it should be clearly proved that the original lessee assented to the termination of his term. In short, it must bo proved that the lessor and lessee mutually agreed to a surrender of the term, and, that proved, the original tenant is no longer liable, but the new tenant (if there is one) is liable. ” In Wilson v. Lester, 64 Barb. 431, it was held that the mere receipt of rent from the assignee the lease will not have the effect to discharge the original lessee, when there is no proof of the surrender of the premises, and an acceptance of the assignee as tenant. So in Laughran v. Smith, 75 N. Y. 206, it was held that the fact that the plaintiff, with knowledge that defendant had ceased to occupy, collected and accepted from the occupants rent accruing after defendant left, did not discharge defendant from liability, and did not establish a surrender or a new letting. In Winant v. Hines, 6 N. Y. St. Rep. 261, where the tenant left before the expiration of the term, and the landlord relet for the rest of the term at a reduced rent, it was held that the landlord could recover of the original tenant the balance of the rent under the original lease, after crediting what he received from the new tenant. In the present case, the original lease has not yet expired. Eor aught that appears, the defendants can resume possession for the balance of the term at any time, subject to such rights as Hubley & Baxter may have as tenants holding over. In the lease to them the defendants reserved certain privileges. For aught that appears, they continued to have those privileges during the subsequent occupancy of Hubley & Baxter, and during the time covered by the rent here sued for. Ho contract is shown between Ballou and Hubley & Baxter, so that the only obligation held by Ballou is the one against the defendants. Did the receipt by Ballou, after the termination of the under-lease, of rent at the same rate he had before received it from the same parties, indicate an intention to release defendants, and accept the under-tenants as his? It did not have that effect before, as adjudicated in the action brought for the balance of the rent prior to May 1, 1885. There is nothing to show a different intention afterwards. The presumption is that it was received on the same basis. The form of the receipts is substantially the same. It was not received as upon an original tenancy, for there was no promise by Hubley & Baxter to pay Ballou, and there was therefore no acceptance by Ballou of Hubley &i Baxter in place of defendants. Without objection from defendants, and to their knowledge, Ballou received and receipted for such sums as Hubley & Baxter were willing to pay, and which presumptively represented the rent due from Hubley & Baxter as holding over on the under-lease. This was not inconsistent with Ballou retaining his claim on defendants for the balance. We think the defense of surrender by operation of law was not made out, and plaintiffs properly recovered. Judgment affirmed, with costs. All concur.  