
    Charles C. Dodge, Respondent, v. Reuben L. Pritchard, Appellant.
    (Supreme Court, Appellate Term,
    April, 1901.)
    Landlord and tenant — Surrender and acceptance as affected by surrender of keys.
    A tenant’s surrender of the keys of demised premises accomplishes nothing as matter of law, and where their surrender to the janitor of the premises is not acted upon by the landlord, the tenant is not released from payment of rent.
    Where the receipt of the keys is coupled with a condition that, if the defendant fails to pay one hundred dollars before the first of the next month, he shall not be released from the unexpired term, his failure to make the payment renders the receipt of the keys ineffectual as an acceptance of a surrender of the premises.
    Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, tenth district, borough of Manhattan.
    Joseph H. Spafford, for appellant.
    William T. Sabine, Jr., for respondent.
   Leventritt, J.

The appellant claims that he is released from his obligation to pay rent by virtue of a surrender and acceptance of the demised term. He was tenant under a yearly lease and sought to be relieved of his contract at the end of nine months. He testifies to various interviews with the plaintiff concerning the-terms on which a surrender would be accepted; the decision of' the justice, however, involves this version of the interview which we accept as in accordance with the weight of evidence: The-plaintiff agreed to release the defendant from his contract in consideration of the payment of $100 before the first of the ensuing month. The defendant claims he was to pay the $100 when convenient to him. Even if there was an agreement for a conditional acceptance and surrender, it was not lived up to by the defendant. He now relies on a surrender and acceptance by operation of law. It appears by his testimony that within a few days after the alleged agreement with-the plaintiff he moved out of the premises and gave the keys of the apartment to the janitor. This was about the middle of the-month. He testifies that at that time the plaintiff was not in the city of Hew York. The latter testifies that the defendant moved out in the night, that he did not enter or relet the apartment occupied by the defendant, but simply gave the janitor orders to clean it, and remove some straw. There is no testimony that the janitor ever communicated to the plaintiff the fact of" the surrender of the keys or that he had any authority to receive-them.

It might be sufficient to rest this affirmance on the just finding of fact below. If the tenant moved out upon an agreement that he was to pay $100 on the first of the ensuing month, his failure to do-so would terminate the contract and revive-the conditions of the original letting. Independently of that,, however, the conceded facts establish no acceptance of the intended surrender. Mere surrender of keys accomplishes nothing-as a matter of law. That fact is evidence, the weight of which varies with the circumstances of each case from which surrender- and acceptance can be implied. Dorrance v. Bonesteel, 51 App. Div. 131; Underhill v. Collins, 132 N. Y. 269; Gaffney v. Paul, 29 Misc. Rep. 642; Thomas v. Nelson, 69 N. Y. 118. Acceptance by the janitor not acted upon by the principal' is ineffectual' to bind the latter. Johnson v. Doll, 11 Misc. Rep. 345. The-plaintiff was not called upon to do anything until the time for paying the $100 had expired. Even if the keys had' been directly surrendered to him he was under no obligation. to tender a return. Thomas v. Nelson, supra. On the facts found this case resolves itself at most into one where the receipt of the keys was coupled with the express condition that in the event of the failure of the defendant to pay the stipulated amount, the original rights of the plaintiff were not to he affected. There was no acceptance in law, and none in fact. McAdam Landl. & Ten., § 209; Chaplin Landl. & Ten., § 565. The judgment is right and should be affirmed.

Bischoff, P. J., and Clabke, J., concur.

Judgment affirmed, with costs.  