
    Henrietta A. Latham, Appellant, v. Robert S. Woodward, Respondent.
    (Supreme Court, Appellate Term,
    April, 1906.)
    Landlord and tenant — Nature of tenancy — Tenancies from year to year — Holding over.
    Where, at the expiration of a renewal for one year of a lease for three years from October 1, 1899, the tenant, without a second renewal, continues to occupy the premises until after October 1, 1904,
    
      he is liable as a hold-over tenant for a year for rent to October 1, 1905, unless Ms term is shortened by agreement.
    Evidence that his term was shortened by oral agreement considered and held so improbable as to call for a reversal of a judgment in favor of the tenant.
    Bischoff, J., dissents.
    Appead by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of New York, Twelfth District, borough of Manhattan.
    Z. Melville Knowles, for appellant.
    H. A. Cushing, for respondent.
   Scott, J.

I am not disposed to assent to the affirmance of this judgment, as the testimony upon which it rests is too doubtful to be relied upon. The action is for rent of a house for July, August and September, 1905. The defendant first became, a tenant under a written lease for three years from October 1, 1899. That lease was renewed by an interchange of letters from October 1, 1902, to October 1, 1903. No second written renewal was had, but defendant continued to occupy the house after October- 1, 1903, thus becoming a hold-over tenant for a year, or until October 1, 1904. After that date he continued to occupy the house and, consequently, became again a hold-over tenant for a year, un-. less his term was shortened by the agreement he relies upon. The defendant’s testimony is that, on June 1, 1903, he wrote to plaintiff that he would like to keep the house until May or June, 1905, and then surrender it. No written reply to this proposition was made hy plaintiff. Defendant relies upon a verbal acquiescence, concerning which his testimony is not very convincing, and which plaintiff absolutely denies. That she ever acquiesced seems to be inherently improbable, as no reason suggests itself why she should agree, two years ahead, to have her house left tenantless at a time when it was practically certain that she would lose three months’ rent. The agreement, if made as defendant testifies, was undoubtedly void under the Statute of Frauds; but the plaintiff, for some reason, did not take that objection below. Passing that point, however, I think that such an improbable agreement as defendant relies upon should not be sustained, except upon proof much 'stronger and more convincing than was presented in this case.

The judgment should be reversed and a new trial granted with costs to appellant to abide the-event.

Tbuax, J., concurs.

Bischoff, J. (dissenting).

There is no ground for our disturbing this judgment. The plaintiffs claim for rent was based upon the theory that the lease continued from October 1, 1904, to October 1, 1905, through the tenant’s remaining in possession after October 1, 1904. It appeared, .however, from testimony which the justice was well authorized to accept, that, in June, 1903, the parties had orally agreed that the tenancy should end July 1, 1905. When this agreement was made, thé defendant was in possession as a tenant whose term was to endure until October 1, 1903; and proof of the oral lease from that date to July 1, 190.5, could, we may assume, have been assailed as in contravention of the Statute of Frauds; but all the evidence upon the subject was received without objection, except that, in one instance, after the matter had been fully testified to, an objection was made to a responsive answer upon the ground that oral proof of the lease was not competent. At no time was the court asked to make any actual ruling in accordance with the claim, now asserted, that the oral lease was void; and thus the plaintiff, by acquiescence at the trial, waived any available objection to the contract and the mode of proof. Crane v. Powell, 139 N. Y. 379.

The judgment should be affirmed with, costs.

Judgment reversed and new trial granted with costs to appellant to abide event.  