
    SMITH v. ALLT.
    
      N. Y. Common Pleas; General Term,
    
    
      February, 1878.
    Landlord and Tenant.—Holding Over.—Evidence.—Verdict by Direction of the Court.
    Where a tenant for a year or more holds over the term, the landlord has the option to treat, him as a trespasser, or as a tenant for another year upon the same terms as the previous lease.
    But where mutual acquiescence in a further term at the like rent is not inferable, the holding over, to warrant the application of the rule, must be wrongful.
    Hence, where the parties to a lease of a part of a building, were in negotiation, which was continued over the expiration of the term, for the occupation of a different part of the building at a different rent, and where the part which the tenant had occupied was undergoing repairs from a fire, and was not then in a condition in which either he or any other tenant could use it, and the negotiations having failed, the landlord ordered the tenant to leave as soon as he could, and he was prevented from leaving for a fortnight on account of the neglect of the landlord to furnish the means;—Held, that there was not sufficient evidence of such a holding over as to justify the court in taking the case from the jury and directing a verdict for the landlord.
    Where there is a conflict as to some of the facts of a case, so that the judge at the trial cannot assume that the legal conclusion upon the testimony is in favor of the one party or the other, he should submit the case to the jury.
    Action for rent. Appeal from the general term of the marine court.
    This action was brought in the New York marine court by Mary E. Smith against Edmund Allt for the rent of the front half of the third floor and the whole of the fourth floor of the premises known as No. 15 Dutch street, in New York city, from May 1, 1876, to August 1, 1876, on the assumption of a holding over after the expiration of an estate for years.
    The defendant held the premises under a written lease, which expired May 1, 1876. This lease contained a provision that in case of damage by fire so extensive as to render the building untenantable, the rent should cease until the building should be put in complete repair. On March 30, 1876, the premises became untenantable by the occurrence of a fire, and the landlord allowed a deduction of rent for the last month of the term. The fire rendered it impossible, until the repairs were made, to move the defendant’s property, including very heavy machinery. The repairs were not concluded until May 25, 1876, and the defendant moved out the next day. He would have moved by May 11 if the repairs had been concluded.
    Negotiations between the parties for a new lease began some time before the expiration of the term, and continued for some time thereafter, but no definite arrangement was made, and the plaintiff finally on May 8 told the defendant he must leave, and again on May 26, told him to “get out as quickly as possible” or she would “put him out.”
    The case was tried before Mr. Justice G-oepp and a jury.
    After testimony had been given by both sides, on motion of plaintiff’s counsel, the court took the case from the jury on the grounds,—
    First.—That a holding over had been established.
    Second.—That a building may be tenantable, though incapable for being used for business purposes.
    A verdict was ordered for the full amount, no deduction being made for any part of the quarter on the ground of the untenantable condition of the premises.
    The exceptions having been heard in the first instance by the general term, the same were overruled, and judgment absolute ordered for the plaintiff on the verdict.
    From that judgment the defendant appealed to this court.
    
      
      John Henry Hull, for appellant.
    I. The condition of the premises on and after May 1, and how long, if at all, they remained untenantable, was an important question of fact for the jury (Digby v. Atkinson, 4 Camp. 275 ; Bishop v. Howard, 2 B. & C. 100; Schuyler v. Smith, 51 N. Y. 313; Park v. Castle, 19 How. Pr. 29 ; Kip v. Merwin, 52 N. Y. 543 ; Gray v. Bompas, 11 C. B. N. S. 520; Lytle v. Lee, 5 Johns. 112; Foot v. Wiswall, 14 Id. 304). If, on the tenant’s part, the occupation was unintentional, unavoidable, or in any way the result of a tacit understanding between the parties that he should remain until negotiations were concluded, he was a tenant at will or sufferance after May 1 (Larned v. Hudson, 60 N. Y. 104; Jackson v. Bradt, 2 Cai. 169 ; 4 Kent Com. 114, 125; Post v. Post, 14 Barb. 253; Burns v. Bryant, 31 N. Y. 453 ; Hegan v. Johnson, 2 Taunt. 149 ; Taylor L. & T. § 21; Smith L. & T. 19). Tenancy at will is implied where a tenant, after his lease has expired, is permitted to continue in possession, pending a treaty for a new lease (Doe v. Stennett, 2 Esp. 717, 719). The landlord’s intent was a matter of importance ; for if there was a tacit understanding that the occupancy was to cease when the negotiation ceased, there was a tenancy at will (Jackson v. Bryan, 1 Johns. 322; Rex v. Collett, Russ. & Ry. 498); and the question of intent is for the jury (Oakley v. Monck, 34 L. J. Ex. 137; Fawcett L. & T. 55, and cases cited; Smith L. & T. 23, note [29]).
    II. Even if we concede a technical holding over, this action ought not lie, because plaintiff has waived her right to sue on contract, she having made her election by putting defendant out and treating him as a trespasser (Schuyler v. Smith, 51 N. Y. 315 ; Park v. Castle, 19 How. Pr. 29).
    III. If between the expiration of the written lease and the beginning of a wrongful and unpermitted oc-^ cupation by defendant, there was an interval of time, such interval constituted a tenancy at will (Witt v. Mayor, 5 Robt.' 253; McDowell v. Simpson, 3 Waits, 129).
    IY. The circumstances of this case present an exception to the general rule that the tenant cannot have even a reasonable time, after expiration of his term, to remove his goods. That rule applies only where the termination of the lease is definite and certain (Taylor L. & T. %% 534, 536: 2 Blackst. 147; Ellis v. Paige, 1 Pick. 43).
    Y. Premises are untenantable when “not fit for the use of an occupant,” or “ not in suitable repair or condition for a tenant” (Kip v. Merwin, 2 Jones & S. 531; Fash v. Kavanagh, 24 How. Pr. 347).
    YI. Evidence of defendant’s having hired other premises should not have been excluded, as it went to establish his good faith in trying to move as soon as possible after he knew he must.
    YII. It can never be established as a principle of law, that where a fire rendered it impossible for a tenant to move until after the term of his tenancy expires, he shall be liable for a year’s rent, notwithstanding he moved as soon as it was physically possible to do so.
    
      Henry Stanton (Gray & Stanton, attorneys), for respondent.
    
      
      In Raubitscheck v. Semken (N. Y. City District Court; First District, January, 1878), it was Held, that after failure by intermediate lessors to pay rent, the payment thereof by the under-tenant to the head landlord, even before demand, is a complete discharge of the under-tenant’s liability therefor to his immediate landlord.
      Summary proceeding.
      This was a summary proceeding by E. F. Raubitscheck, a landlord, for the dispossession of Frederick Semken, his tenant, for nonpayment of a month’s rent.
      John Schermerhorn, owner of the premises No. 200 Front street, leased them to one Stark for three years from May 1, 1877, at a rental of $4,000 a year, Raubitscheck, the plaintiff, being surety for payment of the rent. The lease reserved the right of re-entry to the landlord for failure to obtain his rent. Stark being in default as to the quarter’s rent due August 1,1877, plaintiff paid it, and Stark assigned the lease to him. The plaintiff then sublet the premises to Semkin, the defendant, for the unexpired term of the lease, at the same rental of $4,000 a year. Schermerhorn, failing to obtain his quarter’s rent, due January 1, 1878, from either Stark or plaintiff, demanded the same of defendant, and the latter, who owed plaintiff a month’s rent, $333.33, due January 1, 1878, paid Schermerhorn that sum. This proceeding was thereupon instituted to dispossess defendant for nonpayment to plaintiff of the month’s rent referred to.
      
        David Levy, for plaintiff.
      
        Elliott F. Shepard, for defendant.
      Callahan, Justice. It is a familiar principle of frequent application in dispossession proceedings, that an under-tenant, after proceedings brought against his immediate lessor for non-payment of rent, may himself pay said rent to the head landlord, and successfully set up such payment against attempted dispossession by the immediate lessor for failure to make the payment to him.
      But whether (as contended for by the learned counsel for the defendant), after failure by the intermediate lessors to pay rent to Schermerhorn, the head landlord, who thereupon had a right of re-entry, a payment by defendant to such head landlord—simply upon demand made—of the rent for non-payment of which to plaintiff, defendant’s dispossession is sought by the latter, inured to the benefit of plaintiff, and was a complete discharge of defendant’s liability for such non-payment, raises a question of law seldom presented.
      The point, however, appears to have been fully considered and settled affirmatively by the court of appeals, in Peck v. Ingersoll, 7 N. Y. 528, cited by the learned counsel in support of his proposition. The privilege of the under-tenant to pay to the head landlord is, in that case, held to exist “if there be in the head landlord a legal right, by the exercise of which the person who pays may be damnified, unless he satisfies it;” and the head landlord need not even demand the money or commence or threaten suit; the mere right to enforce his claim being regarded as making the payment by the under-tenant compulsory.
      The proceedings must be dismissed.
    
   Daly, Ch. J.

The law is undoubtedly well settled, that where a tenant for a year or more holds over the term, the landlord has the option to treat him as a trespasser, or as a tenant for another year upon the same terms as the previous lease (Schuyler v. Smith, 51 N. Y. 309).

But that was not the point in this case. The question was whether there was a holding over within the meaning of this rule ; a point upon which there was so much doubt upon the evidence, that the judge upon the trial could not assume that the legal conclusion upon the testimony was, that the defendant held over the term, either as a trespasser or a tenant; and as the plaintiff had a right to treat the holding over as a tenancy, that she was entitled to judgment, and that there was no question for the consideration of the jury.

By the clause in the lease, the rent was suspended in the event of fire, until the building should be put in complete repair. A fire occurred on March 30, 1876, and the building was not completely repaired until May 35 following ; which is not only sworn to by the defendant, but also by the plaintiff’s own witnesses. Smith and Fowler swear that the repairs were all finished on May 1; but one of them, Fowler, who was the carpenter employed by the plaintiff to make the repairs, afterward contradicted his previous statement. He was asked when he “ got through the job of repairing and quit the building,” and he answered, “I have been at work there within three weeks,” which would be about February 8, 1877. He was further asked. “ When did you get through with the .repairs of the damages occasioned by the fire,” and he answered, “ About May 15 or 30, 1876.”

The term ended on May 1, 1876, and the defendant as early as the preceding February informed the plaintiff that he meant to give up the third floor, and would leave unless he got the fourth floor for $500, asking for a reduction of $300. Plaintiff thought the reduction too large, was willing to make a reduction of $100, but said, “ Let it stand over a little while and I will see about it.”

The fire occurred on March 30. The fire was a very serious one. It burned through the floor occupied by the defendant, up to the fifth floor; his goods fell through to the floor below; the fire patrol took possession of the premises, and it was not until April 11 following, that he came into possession of his property. On May 5, whilst the repairs were being made, the defendant met the plaintiff in the building, and informed her that the fourth floor would not be enough for him. He showed her what he wanted. She said she would make the rent $700. He declined to pay the amount— offered $625, but she would not agree to it and told him that he must go out as soon as he possibly could,— which was not an easy matter, as he had heavy machinery, the removal of which was obstructed by the condition in which the building was in consequence of the fire. On May 8 following, she sent for him: he saw her, and she told him he might have the premises he wanted for $650. He said he would not pay it, and she replied that she would put him out, if he did not give it to her. She then said, “Mr. Allt, will you give me $650 for the room 3” and be said, “ I will not, Mrs. Smith upon which she replied, “ Well, Mr. Allt, I don’t want to give you any trouble, but you must leave.” He told her that whatever time he occupied the room or building after it was finished, he was willing'to pay for ; to which she merely said, “Gret out as quick as possible.” He was ready to move out on May 11, but there was a difficulty in removing his heavy machinery, as the hoisting-rope was burned and scorched. In taking down some lumber, the rope broke and damaged a part of the hoistway, and he could not get out his heavy turning-lathes, weighing 1,500, 700 and 400 pounds, without a hoisting way. On or about May 15 or 20, he applied to the plaintiff to put in a hoisting-rope, but she was very angry, said she had something else to do besides fixing ropes ; and he had to have the hoistway repaired himself, without which it would have been impossible to have got the machinery down.

He was ready to move out on May 11, but he, through causes above referred to, was not able to do so until May 26, and he vacated the premises entirely about June 1. There was conflict as respects some of these facts, which was evidence, not for the court, but for the jury. The defendant testified that he did no work upon the premises, and could not: and did not do any business there after the fire—that is, after March 30.

And the rent was suspended from the time of the fire, until the building was completely repaired. As the repairs were not finished until May 25, and during that time the defendant could not do any work, or' carry on any business; as he and the plaintiff had under consideration the occupation of a different part of the building from the part he had formerly occupied, when it was repaired, but were unable to agree upon the rent which should be paid ; as his remaining there after May 1 was because the matter was still under consideration; and as the plaintiff, on May 8, when they could not agree, recognized his right to leave, requested him to do so as soon as he possibly could, declaring that she did not want to give him any trouble, and necessarily implying that he was to have a reasonable time therefor under the circumstances; and as three days after he was ready to move, but his moving out was delayed in consequence of the want of the hoistway, which he had to have put up himself, and was engaged before the building was finished in moving out, and vacated the premises altogether a few days after the building was finished, I fail to see how it can be assumed, as a matter of law, that it amounted to a holding over beyond May 1, which made him responsible for a year’s rent thereafter. The rule in respect to the effect of holding over is to have a reasonable construction, and to apply it in a case like this would be doing an act of injustice to the defendant, and doing what the plaintiff herself did not intend, as is shown by her recognition, after May 1, of the defendant’s right to leave.

Where a tenant, tinder a yearly hiring, without saying anything to his landlord, or where the landlord has not consented to any new or different agreement, holds over the term, the landlord has a right to assume that the tenant has concluded to remain for another year upon the same terms. But that is not this case, where the parties were in negotiation, and which negotiation was continued over May 1, for the occupation of a different part of the building, at a different rent, and where the part which the defendant had occupied was undergoing repairs, and was not then in condition in which either the defendant could use and enjoy it as before the fire, or in which any other tenant could come in and take possession of it, where that negotiation ended as the parties could come to no agreement, the plaintiff’s orders were, as I have said, for the defendant to leave as soon as he could, and in a few days thereafter, he made an effort in good faith to leave, and that he did not get his bulky property away until more than a fortnight afterwards, was owing to the causes already recited. Where-mutual acquiescence in a further term, at the like rent, is not inferable, the holding, to warrant the application of the rule, must be wrongful. It must be tortious in its character (Schuyler v. Smith, supra, pp. 314, .31-5), giving the landlord the right to treat the holding over as a trespass, or if he so elects, as a continuation for another year upon the same terms. The tenant in such a case has no ground of complaint, as he had no right to remain after the expiration of his term, thereby enjoying the use of the premises and depriving the landlord of the opportunity of letting to another tenant. The plaintiff sought to show that the plaintiff told the defendant to leave as soon as possible. She gave him a written notice that as he had continued in occupation after the expiration of his lease, she would hold him as her tenant for another year upon the same terms. The two acts upon the same day, of ordering him to leave, and holding him as a tenant for another year from May 1, preceding, were not very consistent. ' But it is not necessary to dwell upon this, as the justice ruled out this testimony, and it did not therefore enter into either his deliberations or that of the general term, upon the question of law.

The case, in my judgment, should have been submitted upon all the facts to the jury, as there was conflict as to some of them, and I think therefore that the judgment should be reversed.

Robinson, J., concurred.  