
    Henry A. Manly, App’lt, v. William F. Clemens, Resp’t.
    
      (City Court of New York, General Term,
    
    
      Filed May 8, 1891.)
    
    Landlord and tenant—Holding over—Evidence.
    Defendant leased from plaintiff a loft. His term expired at noon February 2, 1891. He worked from eight o’clock in the morning until twelve o’clock midnight of that day, removing his goods, and was then obliged to leave a desk and safe until the following morning. It appeared that in December, 1890, plaintiff placed a sign “ to let” upon the premises, which was not removed until February 6, 1891. Held, that defendant’s delay was not such a holding over as would warrant the direction of a verdict in plaintiff’s favor for the month’s rent.
    Appeal from a judgment of trial term.
    
      Stickney & Shepard, for app’lt; Kneeland, Stewart & Epstein, for resp’t.
   Fitzsimons, J.

—The defendant leased from the plaintiff a loft, being one of several in the same building. It is admitted that the term expired on February 2, 1891, at twelve o’clock noon. It is also admitted that the tenant did not remove from said premises all of his goods until twelve o’clock midnight of that same day, and even left a desk and safe until the following day.

The landlord seeks to recover the rent for the month of February upon the theory that the tenant’s failure to vacate said premises at twelve o’clock noon on February 2nd constituted a holding over, which entitled him to receive the full month’s rent.

Upon the trial a judgment was rendered in favor of the defendant.

The plaintiff claims upon the admitted fact of holding over after twelve o’clock noon, that a verdict should have been directed in his favor, and for other alleged errors that the judgment should be reversed and a new trial ordered.

It appears from the evidence that about December 6, 1890, the plaintiff caused to be placed upon the premises, in which loft in question is, a sign “ To let,” which was not removed until February 3, 1891, between two and three o’clock, and further that on December 6, 1890, the defendant wrote plaintiff a letter asking for a new lease which he declined by written answer to such letter to give, stating that he desired to rent all the lofts in the building to one person, and subsequently that his agent also declined to make such a lease; it is, therefore, quite evident that the plaintiff did not desire to have as á tenant the defendant after the expiration of his lease.

It is also quite as evident that the defendant did not intend to remain as a tenant, for the morning of February 2d, as early as eight o’clock he commenced to remove his goods and with the aid of several assistants continued to do so without intermission until twelve o’clock midnight, when all such goods were removed, except the desk and safe, and the premises vacated.

To hold the defendant liable for the rent of February it must appear that his holding over from midday to midnight was intentional and tortious, and, therefore, the trial justice was right in his submission of this' question to the jury and their finding in the negative seems to be amply sustained by the evidence. I think the law of this case is correctly stated in McCabe v. Evers, 30 N. Y. State Rep., 833.

The evidence of negotiation and conversation between the parties concerning a renewal of the lease we think was material as tending to show the intention of plaintiff to refuse such renewal and his desire to have defendant remove upon his expiration of his lease.

The rule that a tenant must vacate demised premises at the end of his term must be reasonably construed, and he should only be liable when he holds over intentionally, wrongfully and for his own benefit It is frequently quite impossible in this city owing to limited means of conveyances and the immense size of business concerns, delays and obstacles oyer which a tenant has no control, to move within a limited period, and he should only be punished where it is evident that he is an intentional wrongdoer.

All things considered, we think the verdict appealed from is a just one and in accordance with the law, and should be affirmed. So ordered.

Ehrlich, Oh. J., concurs.  