
    William C. Schmidt, Despondent, v. Herman Vahjen, Jr., Appellant.
    Second Department,
    March 3, 1911.
    Landlord and tenant — surrender— acceptance by landlord.
    There is a surrender by a tenant and" an acceptance thereof by the landlord where the tenant returned the key of the premises and the landlord put up a “ To Let ” sign and permitted another person to use the store gratuitously, but without the tenant’s consent, and did not demand rent monthly, as theretofore, but delayed demand until the term had expired.
    Appeal by the defendant, Herman Yahjen, Jr., from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 5th day of October, 1910.
    
      William Wills, for the appellant.
    
      John R. Glover, for the respondent.
   Per Curiam :

The defendant rented the plaintiff’s store, 415 Graham avenue, under a letting apparently not in writing. Whatever the term was, the defendant was at liberty to surrender the premises after April, 1909. In April he agreed with plaintiff to hire the store for a year, as plaintiff states; for the month of May, as defendant testifies. The defendant’s evidence shows that he had rented another store, hut could not move into it at once, and that for this reason the plaintiff allowed him to remain in the store in question for May. 'In support of his evidence defendant produced a form of receipt similar to that given for the May rent. On this receipt is printed “ (Let for One Month Only.) ” I think that the court was justified in holding that the letting was for a year. But the more serious question is, whether there was a surrender. The defendant supports the defense of surrender by proof (1) that he gave the key to the plaintiff. He did give it to the plaintiff or send it to his office; (2) that the plaintiff put up a To Let ” sign ; (3) that the plaintiff permitted a woman, who occupied an adjoining store, to use the store from the twenty-fourth or twenty-fifth of June until the sixth or seventh of July; (4) that the plaintiff did not demand the rent monthly, as he had theretofore done, although it appears that he did demand it after the term expired.

The plaintiff testified that, previous to defendant’s vacation of the store, the former told him that he would hold him responsible for the year’s rental of the store if he moved out. From these facts does the law imply a surrender and acceptance ? Ho such implication would arise from the acts done, such as receiving the keys and advertising to let, but do such acts accompanied by the permission to a third party to occupy temporarily, operate as an acceptance ? The plaintiff, by stating that he would hold defendant for the rent, disavowed acceptance, but he did not state that he would relet the premises and hold the defendant for deficiency, nor was anything said or done that gave the plaintiff such right to proceed and at the same time hold the defendant for the unpaid rent. ( Underhill v. Collins, 132 N. Y. 269 ; Gray v. Kaufman Dairy & Ice Cream Co., 162 id. 388; Levitt v. Zindler, 136 App. Div. 695.) So the question comes to this, was the act of allowing another to occupy gratuitously the premises for the time stated an acceptance of the surrender theretofore tendered and declined? Gray v. Kaufman Dairy & Ice Oream Go. (supra) approved the rule that “ a surrender is implied, and so effected by operation of law within the statute, when another estate is created by the reversioner or remainderman with the assent of the termor incompatible with the existing state or term.” The plaintiff had no right to permit another to use the premises, unless he assumed the responsibility for such use and what injury to the premises might result. In absence of an agreement express or implied to let on the tenant’s account, the landlord could neither enjoy the use of the property nor donate it to another. He could not assume dominion, not delegated by the tenant, without impairing the tenant’s right of enjoyment. The tenant, if obligated to pay the rent, was entitled to such sole control and beneficial use of the premises as flowed from the terms of letting. Here the landlord suffered another tenant to enter and use the premises by day and night for selling goods. Thereby a term in another was created, limited in time by the landlord’s will. Thereby the tenant was ousted, and his premises appropriated to another person for purposes of business. It does not aid the landlord but harms his position, that he charged no rent. What he could not do consistently with the defendant’s obligation for compensation inuring to the latter’s benefit, he could not do by a gift of a part of the tenant’s term, whereby the latter derived no benefit but was exposed to an abuse of the premises by a stranger to him. I am constrained to the conclusion that this act of the landlord, in connection with his other actions respecting the store, operated as an acceptance of the proffered surrender.

The judgment should be reversed and a new trial ordered, costs to abide the event.

Jeeks, P. J., Hiesohbeeg, Bdee, Thomas and Rioh, JJ., concurred.

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