
    Edward R. Burckle and Minnie T. Wilson, Individually and as Trustees under the Will of Margaret Burckle, Deceased, Respondents, v. Adams Brothers Company (Incorporated), Appellant.
    
      Xandloj’d and tenant — what constitutes an abandonment of a renewal of a lease and creates a holding from, month to month.
    
    A lessee, whose lease gave it the privilege of a renewal for another year, served upon the lessors a notice stating that it wished to renew the lease, but that it desired to obtain additional room. After some negotiations, the lessee sent to the lessors an instrument reciting: “ This is to certify that we, Adams Brothers Co., accept your proposition regarding leasing premises Nos. 152 and 154 Fort Greene Place, Brooklyn, New York, and additional adjoining space as specified in option expiring this day, January 29, 1900.” The lessors caused to be inserted in the new lease a provision not contained in the old lease, and the lessee refused to execute it. Subsequently the lessee wrote to the lessors expressing his approval of a suggestion made by the lessors’ attorney that all negotiations in regard to the new lease be declared at an end and stating, “ in the meantime you will consider us tenants from month to month at the rate of $83.334 Per month, pending any new deal which we might hope to make with you.” The lessors made no objection to this proposition and received rent-for six months in accordance therewith without protest.
    
      Held, that the lessors’ conduct must be deemed an acquiescence in the lessee’s proposition to hold from month to month, at least to the extent of preventing the lessors from asserting that they had elected to regard the lessee as holding over, under the terms of the former lease, for a year.
    . Appeal by the defendant, the Adams Brothers Company (Incorporated), from a judgment of the Municipal Court óf the city of New York, borough of Brooklyn, second district, in favor of the plaintiffs, rendered on the 14th day of November, 1900.
    
      Edward Swann, for the appellant.
    
      Albert G. McDonald, for the respondents.
   Hirschberg, J.:

This judgment cannot be sustained on the theory urged by the plaintiffs, viz;, that the defendant has exercised its option to renew the lease for one year, and that all negotiations for a new lease were incidental and subordinate to that fact. The. defendant had a lease under the plaintiffs’ decedent which expired February 1, 1900. This lease, by its terms, gave the defendant the right and option of renewal from year to year for nine years “ on condition and provided, however, that for each such yearly renewal or extension, it shall serve upon the party of the first part at' least three months prior to the expiration of the then existing lease a written notice of its intention and election so to renew or extend the same, upon the giving of which'notice it-shall be considered to have and to be bound by such lease for another year from the expiration of the then existing lease.” The defendant did not serve a notice, as required, three months before February first, but did serve one on or about January 3, 1900. This was addressed to the decedent. An option for a new lease,, to which ■ reference will be more fully made hereafter, was given on her behalf to the defendant, under date of January 8,1900, but she died on the eleventh of January, and the negotiations for a new lease were thereafter conducted by the plaintiffs as her legal representatives and successors in interest. There would be little difficulty, perhaps, in holding the defendant to an additional year under the lease in question, if its communication to the deceased could be fairly construed to be an unequivocal exercise of the option, for the requirement as to time might be deemed, under the circumstances, to have been waived.

But the notice is not an exercise of the option, excepting upon conditions which the defendant required should be taken in connection with and made a part of it, nor did the plaintiffs regard it otherwise. It reads as follows: “ We- beg to confirm that we are desirous of renewing our present lease at premises Hos. 150 & 152 Fort Greene Place, Brooklyn, H. Y., but in this connection we desire to have the privilege of enlarging on our lease as follows: ” Then follow suggestions for additional room and accommodations, both existing in connection with the premises and to be constructed by the landlord, with various alterations in the premises already leased, the communication concluding as follows : “We would like to have a prompt reply from you on this so that we can make alterations in our present beef cooler during the cold weather. With the extension we would be willing to take a lease for five years, with the privilege of a five-year renewal at the same price.”

The option of January 8, 1900, which followed this communication, gives the defendant the right to lease for a term of five years, with five years renewal, the property now held by it under lease, with “ certain other additional space adjoining the main building,” etc. The option by its terms expired on January 27, 1900, but was renewed in writing, to expire January twenty-ninth, on which day the defendant executed a written acceptance as follows : “ This is to certify that we, Adams Brothers Co., accept your proposition regarding leasing premises Hos. 152 and 154 Fort Greene Place, Brooklyn, Hew York, and additional adjoining space as specified in option expiring this day, January 29, 1900.” One of the plaintiffs, Edward R. Burckle, as trustee, acknowledged the receipt of this acceptance in writing the same day, certifying “ that I received from Adams Bros. Co. notice that they take place 152 and 154 Fort Greene Place, as per option dated to expire Jan’v 29th, 1900.” This constituted a meeting of minds on the question of a new lease and would seem inconsistent with the present claim that the defend•ant had exercised a binding option to renew the old one. The plaintiffs did not themselves regard the defendant as having renewed the old lease, or as being entitled to continue under it after February first, for Mr. Burckle wrote to the defendant under date of January 24, 1900, to this effect, Tours of the 22nd at hand. In reply would say that I am unable to extend the time of the option as I have had a buyer and also a tenant for this property. Mrs. Wilson has an interest in this estate as well as myself and, therefore, I cannot extend the time. If the property is not sold or leased at the time you wish to make arrangements for it, would be pleased to make a new arrangement with you. Tou state that you wish' to continue your lease, but you wish to make it understood that you want certain privileges that does not hold good. This is not business and we cannot tie up our property this way.”

The will was not proved until April 20, 1900, the defendant meanwhile remaining in possession of the premises covered by the first lease. A written lease was meanwhile prepared to cover the new term proposed, but the defendant refused to execute it because •of certain conditions which the plaintiffs caused to be inserted, among which was one to the effect c‘ that any improvement or additions made by the said party of the second part in the demised premises and any and all fixtures attached in any way to the premises hy the said party of the second part are to remain on the demised premises at the termination of its occupancy hereunder.” This, provision was not in the old lease, and there is no evidence in the case justifying its insertion.

On April 23, 1900, the defendant wrote to the plaintiffs expressing “ our approval of the suggestion made by your lawyer, Mr. McDonald, in your behalf that all negotiations in regard to leasing .an additional space to that which we now occupy at ISTos. 152 & 154' Fort Greene Place, Brooklyn, H. Y., be declared at an end. * * * In the meantime you will consider us tenants from month to month •at the rate of $83.33^- per month, pending any new deal which we might hope to make with you,” etc. Up to this time the defendant had paid no rent since February first. On April twenty-seventh it paid the plaintiffs for February, March and April at.the rate pro-, posed, which would have been the renewal rate, and the plaintiffs accepted and receipted for it. On remitting for the July rent in advance, the defendant wrote that it “ would vacate the premises at the end of this month, this being as per our agreement with you, that we would occupy the premises only as monthly tenants.”

The action is brought to recover the rent for the months of August and September after the defendant had left the premises pursuant to the written notice accompanying the July rent. The ■complaint alleges that the defendant exercised its option to renew the old lease; that such lease was renewed; and that the defendant ■continued in possession after February first under such renewal.

It needs no citation of - authority to determine that the first léase was intentionally terminated and extinguished upon this proof. The •plaintiffs not only appeared themselves to so regard it, but in no manner protested against the assumption of that fact by the defendant, or opposed its suggestion that the tenure should be regarded as that of a monthly tenancy. They received the five months’ rent without any sign of dissent from the proposal which accompanied its payment, and cannot now, under the circumstances, assert that it was paid as a consequence of a binding and valid exercise of the ■option conferred by the lease of the previous year.

This case is distinguishable from Sullivan, v. Ringler & Co. No. 3 (59 App. Div. 184), in that there can be no claim here of a holding ever such as would give the landlord the right of election to regard the tenant as a trespasser, or as a tenant for another year under the terms of the prior lease. The prior lease was terminated by both parties, and the holding over was upon new terms with a -distinct understanding that there was to be a new lease executed. While the tenure and the rent were to be different, and the property involved was greater than under the old lease, it may be reasonably assumed that the general provisions were to be retained in the absence of evidence to the contrary. Had the tenant refused to sign a proper lease drawn in accordance with the option, a different question might have been presented. Here the refusal was based upon the insertion of a provision not existing in the old lease and constituting a burden which the tenant had not agreed to bear. Under the circumstances, a written offer to hold the property from month to month, with the acceptance by the landlords of six months’ rent without objection or protest, must be deemed an acquiescence at least to the extent of preventing them from now asserting that they had elected to regard their tenant as holding-over in accordance with and under the terms of the former lease,, and bound, therefore, for the period of a year. It does not appear that any objection or protest was made when they were informed that the defendant proposed to abandon the .premises at the end of' the month of July, and while the evidence is not as clear. as it might be on the question of the actual surrender of the property, there is enough to warrant the inference that on failure to secure the signing of the lease proposed there was a tacit acquiescence in the proposition that the defendant should remain on a monthly holding which could be lawfully terminated at will upon proper notice.

It follows that the judgment must be reversed.

All concurred, except Woodward, J., absent.

Judgment of the Municipal Court reversed and a new trial ordered, costs to abide the event.  