
    Magnus Larsen, Respondent, v. The City of New York, Appellant.
    (Supreme Court, Appellate Term Second Department,
    May, 1912.)
    Municipal corporations lease by a "municipal corporation — landlord and tenant — eviction.
    Where a municipal corporation, after the expiration of a lease of certain premises used as a corporation yard, continues in possession, it is liable for rent in the absence of an allegation and proof of an eviction; that the city’s possession of a portion of said0’ premises was somewhat interfered with did .not justify a refusal to pay the Vent.
    
      Appeal by the defendant from a judgment for $500 and costs in an action to recover rent for premises occupied as a corporation yard in Long Island City. .Defendant denies occupancy; claims surrender before the expiration of the lease which the city claims was October 1, 1906. Rent sued for is October, 1906, to October, 1907.
    Archibald R. Watson, corporation counsel, for appellant.
    John B. Merrill, for respondent
   Per Guriam.

The question whether the city surrendered

the premises prior to October 1, 1906, was a question of fact. The plaintiff testified that the city continued in occupancy during the entire year from October 1, 1906, to October 1, 1907, and he was corroborated by Mr. Lucien Knapp, who was superintendent of the street cleaning department at the time: The premises in question were used as a corporation yard and were under the control of Mr. Knapp. The finding of the justice tha,t the city held over appears to have support in this testimony, and indeed the city’s testimony to show surrender is not at all definite or convincing. As to the claim of the -city that the plaintiff accepted surrender by leasing stalls in a building on part of the property to the American Express Company prior to October, 1906, the evidence does not. bear out this claim. It shows an immaterial change in the boundaries of the demised premises by which the city occupied a much larger area of vacant ground -—which was what was required for the purposes of a corporation yard — and the plaintiff used in exchange the part of the barn or building in which he leased the stalls. This was by arrangement with the city authorities, and was an immaterial and insignificant change. The reference to lot numbers on a map in this locality in Long Island City is not of great moment. At any rate, the city does not allege and has not proved an eviction. The city could not go on occupying the premises and refuse to pay rent because its possession of a portion thereof was interfered with. Vernon v. Smith, 15 N. Y. 327; Smith v. Barker, 112 App. Div. 187; Austin v. Strong, 47 N. Y. 680; Boreel v. Lawton, 90 id. 293.

The judgment should he affirmed, with costs.

Present: Kelly, Jaycox and Clark, JJ.

Judgment affirmed, with costs.  