
    Henry A. W. Wood, Resp’t, v. Edward Gordon, App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed March 7, 1892.)
    
    1. Landlord and tenant—Holding over.
    Defendant, after signing a lease under seal, objected to the term therein, stated, lli months instead of 12$ months as agreed between the landlord’s, agent and himself; the agent then called his attention to the back of the-lease on which was endorsed, “Term twelve and one-half months. Begins September 15, 1889. Terminates September 1, 1890. Annual rent, $600,” and said : “ This is simply an agreement which forces you to keep-this flat for not loss than one year,” Defendant replied: “Then I will, take the lease for twelve months and a half,” and the agent answered, “ Yes, that is all right.” Held, insufficient to relieve defendant from liability for another term of lli months by reason of holding over.
    3 Same—Excuse.
    The conversation between defendant and the agent was insufficient to-establish a lease for 13J months, the landlord having signed the lease, and no authority in the agent to change its terms being shown, and was also-insufficient to excuse holding over beyond the lli months.
    Appeal from a judgment of the general term of the city court,, affirming a judgment of the trial term, entered upon verdict directed by the court, in plaintiff’s favor for fifty dollars and interest from October 1, 1890. The action was brought to recover rent of an apartment in the premises 958 Ninth avenue for the: month of October, 1890, upon an implied agreement of leasing for one year, arising from the tenants holding over, after the expiration of a previous term,' under a written lease from September 15, 1889, to September 1, 1890. The answer set up a hiring for the term of twelve and a half months, beginning September 15, 1889, and ending September 80, 1890 ; occupation until the last named date and payment of the rent in full up to that date ; also surrender and acceptance pursuant to notice; and finally representation by the plaintiff’s attorney who drew - the written lease, to the defendant, at the time of the signing thereof, that it was a lease for twelve and a half months, acceptance thereof, occupation and payment of rent upon such assurance; and a prayer for judgment, modifying the writing so as to express the real agreement of the parties.
    
      James P. Campbell, for app’lt; Charles De Hart Brower, for resp’t.
    
      
       Affirming 38 St. Rep., 455.
    
   Daly, Ch. J.

The plaintiff proved a lease under seal executed by both parties", by which defendant hired from him the premises. in question, from September 15, 1889, to September 1, 1890, a period of eleven months and a half; and that defendant remained in occupation of the premises until September 30, 1890; and claimed that by such holding over an agreement to hold for a year until September 1, 1891, upon the terms of the original lease, was implied. This claim was sustained and a recovery of $50 rent for the month of October, 1890, was allowed, the rent secured by the original lease being $50 a month, payable in advance, on the 1st day of the month.

The objections of the defendant to this recovery may bel summed up as follows :

First. That evidence was offered by him to show that the original hiring was for twelve and a half months and did not expire until October 1, 1890, upon which he was not allowed to go to the jury.

Second. That even if there were a holding over, the- questions whether it was wrongful or intentional should have been submitted to the j ary.

Third. That if, according to the plaintiff’s contention, the original letting was for eleven months and a half, a continuance of the tenancy for a year, or for any term, will not be implied.

The defendant did not prove a different hiring from that, specified in the sealed lease, and there was nothing to submit to the jury under that defense or the claim for a modification of the written instrument Taking his own testimony as true, it merely appeared that he claimed he had agreed with the janitor of the building for a lease for one year from September 15th to. September 15th; that when he went to the plaintiff’s attorney to sign the lease which had been prepared he found it made out to run from August 15, 1889, to September 15, 1890 ;■ that he declined to take the premises from August, as he had paid his rent where-he was then living to September 15th, and would only take from. ■September 15th • to September 15th; that the attorney promised to alter it; that he called on a subsequent day to sign it; that it 'was then already executed by the plaintiff; that he signed it without looking at it; that after some conversation as to when the half month’s rent was to be paid, he asked the attorney if his 'term was still twelve and a half months, to which the attorney ■answered yes; that he then picked up the lease and looked at it, .and said it was not so stated there; that the attorney called his attention to the back of the lease and said it was stated there; • (on the lease' was endorsed on four separate lines the following: “ Term twelve and one-half months; begins September 15, 1889, terminates September 1, 1890; annual rent, $600); that the ¡attorney said to him, “ This is simply an agreement which forces you to keep this flat for not less than one year, as Mr. Wood will aot let those flats, and has not let them, for less than one year ”; that after further conversation defendant said, “ Then I will take the lease for twelve months and a half ”; and the attorney replied, “Yes, that is all right.” The plaintiff was not present.at •either of these interviews.

It thus appears that after the defendant had signed the paper, ¡"and looked at its contents and knew what they were, he retained it, relying upon the assurance of the plaintiff’s attorney that its legal effect was different from what its plain provisions denoted. "This will not relieve him from the contract, clearly expressed in -writing, without ambiguity, to which he bad put bis hand, and which stated that the premises were let to him from September 15, 1889, to September 1, 1890. Even if he had not read the paper the case would be the same; having the means at hand of •ascertaining what the contract contained, he had no light to rely upon the representations of the agent of the other party as to its -contents. Hill v. S., B. & N. Y. R. R. Co., 73 N. Y., 351. There is no precedent for granting relief to a party for a false affirmation -concerning the contents of a written instrument when that instrument is completely within his reach. Starr v. Bennett, 5 Hill, 303. If it be claimed that plaintiff’s attorney made any different contract than that which had been already signed and sealed by his •client and the other party, and delivered to the latter, then no -authority in him to do so was shown, much less to make a contract which would have been void as a paroi lease for more than a year. There was, therefore, no contract proved, except that expressed in the written lease, and no basis for a modification of that instrument

As the time expired September 1,1890, and defendant remained in the premises until September 30, there was a holding over. •“ The law is too well settled that where a tenant holds over after the expiration of his term, the law will imply an agreement to hold for a year upon the terms of the prior lease.” Schuyler v. Smith, 51 N. Y., 309. But such holding over must be intentional and wrongful, and the case may, and often does, arise in -which it is a question of fact upon the evidence whether the holding over is of that character, and in such a case the case must be ¡submitted to the jury. It was so held where a term expired on the first of May, and the tenant had not removed all his machinery,, which was.very heavy, from the premises by the twenty-sixth of the month, owing to delays caused by a previous fire and negotiations for a new lease, which were ended by the landlord giving him notice to quit on the eighth of the month, followed by his. efforts to do so, Smith v Allt, 7 Daly, 492; and where the term expired on May first and the tenant removed before that date, but. left a stove and some rubbish on the premises, and" the key was not tendered until May second, this was held not to constitute a.. holding over, because excusable and unavoidable under the circumstances of the case, McCabe v. Evers, 30 St. Rep., 833; and. so where the term expired February second and defendant removed on that day all but a desk and safe, which were not removed until the next day. Manly v. Clemens, 39 St. Rep., 199.

The case before us presents no features showing the holding over to be unintentional or excusable. On the contrary, the defendant remained in possession with the knowledge that, by his-written lease, his term expired a month before he chose to leave.. It will not do to admit as excuse his assertion of right to so remain under the verbal understanding he claims to have had for a longer term; for this would give him all the advantage he seeks-by a denial of his actual contract. His real position in law was-that of a trespasser, and it is this tortious holding which gives the? plaintiff the option to treat him as a tenant for another term. There was no question to submit to, the jury under this defense.

The question remains: For what term does the law imply a continuation of the original tenancy? The appellant claims that a renewal upon the original terms is never implied where the original letting is for less than one year. The cases in this state-in which the doctrine is announced all present the feature of an original letting for one or more years, or at an annual rental, and in some instances the rule is narrowed in the statement of it, as in-Conway v. Starkweather, 1 Denio, 114, per Bronson, J.: “ When a tenant under a demise for a year or more holds over after the end-of his term without any new agreement with the landlord, he maybe treated as a tenant from year to year, and in all other respects, as holding upon the terms of the original leasein others, it is-stated more broadly, as in Abeel v. Radcliff, 15 Johns., 507, per Spencer, J.: “ Where a tenant holds over without any new stipulation between the parties, an implication arises that there is a tacit-consent on both sides that the tenant shall hold from year to year at the former or first rent”

In Laughran v. Smith, 75 N. Y., 210, the rule is stated by Andrews, J.: “ When a tenant enters for a year, and holds over after the expiration of the term, the law from the continuance of the possession implies.a contract on the part of the tenant to renew the tenancy for another year on the terms of the original letting.”1 In that case, as in all those quoted, a yearly letting was intended arid actually effected, and the rule is stated with reference to the facts of the case.

But a like rule prevails in tenancies for less than a year. Thus-; we know that a tenant for a month holding over may be treated! -as a tenant for another month and the reason of the rule applies to a tenancy for any fixed period or term less than a year, and it has been so held. “Where the tenant under alease for less than a year (in this case eight months) holds over with the landlord’s ■consent, express or implied, holding fora term of equal length on the same conditions is presumed.” Bollenbacker v. Fritts, 98 Ind., 50. To the same effect are Prickett v. Ritter, 16 Ill., 96; Field v. Herrick, 14 Ill. App., 181; Clapp v. Noble, 84 Ill., 62; Blumenberg v. Myres, 32 Cal., 93-6. In Hurd v. Whitsett, 4 Colo., 77, it is said “ Where the term is for a shorter period than a year, according to the current of authorities, both English and American, the holding over is implied for a like term.” The lease was for less than a year in that case: and the same rule was applied in Bright v. McOuat, 40 Ind., 521, where the lease was for six months, and the general rule is thus stated in the American and English Enc. of Law (vol. 12, p. 758 q.) “Where a tenant, with the consent of :the landlord, express or implied, holds over his term, the law implies a continuation of the original tenancy upon the same terms ■ and conditions.”

There seems, therefore, to be sufficient authority, as well as sound .reasons, for holding that the defendant in this case by wrongful^ holding over became, at the option of the landlord, this plaintiff, -a tenant of the premises for another term of the same length for which the premises were demised by the original lease, viz; eleven .months and a half, and the plaintiff upon the pleadings and proof was entitled to a direction in his favor. The complaint sets out ••a claim for a renewal of one year, but this is a statement of a conclusion and not of a fact; the facts pleaded were sufficient to ■constitute a cause of action and the proof sustained the pleading.

The exceptions to the exclusion of the defendant’s testimony as to his transactions with the plaintiff’s attorney present no ground for reversal, for the error to which they point was subsequently corrected by the admission of his testimony as to all such transactions.

The judgment must be affirmed, with costs.

Bischoff, J., concurs.  