
    United Merchants Realty and Improvement Company, Respondent, v. New York Hippodrome, Appellant.
    First Department,
    July 13, 1909.
    Landlord and tenant—agreement not constituting lease — license to erect advertising sign — holding ovér.
    An instrument by which the owner of a building gives to another a right to use the reof for the purpose of erecting a bulletin board'to display advertise-",' ments for a term of years, at a yearly rental,, with access to the roof during -1 business hours to erect and maintain the signs, and reserving in the owner a > right to enter and make improvements at any time, does not create the con-,.-, ventional relation of landlord and tenant, although the words “let” and “ landlord ” are used.
    As such agreement merely gives a right to erect and maintain the sign during " the period stated, the owner having been notified prior to the expiration Of the- ' -term that the licensee will nó longer occupy "the premises, cannot treat him as .. holding over for another year by reason of his failure to remove the signboard before the expiration of the term.
    Houghton,. J., dissented. '
    Appeal by the defendant, the Hew York Hippodromé, from ari > order of the Appellate Term of the Suprerrie Court, entered'.in -the": 'office of the clerk of the county of Hew York "on the 16th dáy :o£ ■> December, 1908, reversing a judgment of the City Court of the city of Hew York in favor of the defendant, entered in the office of the clerk of said City Court on the 3d day of July, 1908, upon the decision rendered by the court without a jury upon an agreed statement of facts, and also (as stated in the notice of appeal) from a-judgment entered in said city clerk’s office on the 24th day of December, 1908, pursuant to said order of the Appellate Term.
    
      Benjamin N. Cardozo, for the appellant.
    
      S. M. Stroock, for the respondent.
   Ingraham, J.:

The plaintiff, being the owner of premises on the corner of Thirty-fourth street and Broadway in the city of Hew York, entered into, an agreement with the defendant whereby the plaintiff agreed to let and the defendant agreed to take “ all of the roof on the premises known as Ho. 1313 Broadway, corner 34th Street, Borough of Manhattan, City of Hew York, for a term of two years, commencing on the first day of December,, 1905, and ending on the first day of December, 1907, said roof and space above it to be used solely for the purpose of erecting thereon a bulletin board for displaying advertising of a lawful nature; ” and the defendant agreed to pay to the plaintiff in equal monthly installments in advance a yearly rental of $2,000. It was further provided that the defendant should have the right to equip said bulletin board with the necessary equipment, consisting of wires and such other things as might be necessary or incidental to erecting said sign, provided the defendant obtains the requisite consents from the municipal departments and the board of fire underwriters. And for the purpose of erecting and maintaining said sign the defendant -'was to have access to the roof during 'business hours. The defendant was to keep the plumbing work and other parts of the roof in repair at its own expense and plaintiff reserved the right to enter upon said roof and make any improvement it might require or place skylights thereon at any time. The case was tried upon an agreed statement of fact from which it appeared that the defendant entered upon the roof of this building and occupied the same in accordance with the terms of this agreement and caused to be erected on said roof a large iron sign which was controlled or maintained by it during the term of the agreement; that on and after the 1st day. of December, 1907, the date upon which the agreement aforesaid expired, the said sign remained on said premises after said date without the consent of the plaintiff; that on the 5th day of December, 1907, the plaintiff wrote a letter to the defendant stating that as the defendant had held oyer beyond the term of its lease plaintiff elected to continue to hold defendant as a holdover for another year; that prior to December 1, 1907, the defendant had notified the plaintiff that it'intended to remove from the said premises and no longer occupy the same; that the said sign remained on the premises after December 1, 1907. The trial court -found that under these circumstances the defendant was not a holdover so as to entitle the plaintiff to continue the agreement for another year and judgment was entered thereon dismissing the complaint. The Appellate Term reversed this determination and directed judgment for the plaintiff.

Whether or not this, agreement constituted a lease of the roof of this building is a question not free from doubt, but I am inclined to think that the conventional relation of landlord and tenant did not exist. The fact that the parties used the words “ let ” and landlord ” is not conclusive. The plaintiff let to the defendant and the defendant agreed to take all of the roof of the- premises, said roof and space above it to be iised solely for the purpose of erecting thereon a bulletin board for displaying advertisements of a lawful nature, for which privilege the defendant was to pay $2,000 a year. There was no specific property leased, but what seems to ' have been intended was a right to use the roof to erect upon it an advertising sign. The use to which the roof was to be put was strictly limited and the plaintiff reserved the right of access to the roof at all times.. The plaintiff agreed to give the defendant access to the roof during business hours, but such right of access was restricted to the' purpose of erecting and maintaining said sign or changing said sign or the equipment thereof from time to time. There was -no right of re-entry reserved and none was necessary as the plaintiff had the right of access to the roof ■ at all times. There was no covenant to deliver possession of the premises at the expiration of the agreement, and no possession of the premises was given except for the purpose of maintaining the sign. It is quite clear that the defendant was not given exclusive possession of the premises at any time. The most that it had under this agreement was a right to erect this sign or structure upon the building and maintain it during the continuance of the agreement for advertising purposes for which it agreed to pay to the plaintiff a sum of money. I think the case comes fairly within Reynolds v. Van Beuren (155 N. Y. 122), although in this case in consequence of the fact that the defendant erected the structure and agreed to keep it in repair it would have been liable if the sign had fallen into the street and injured a person there. But it seems to ine the essential element of a lease of real property is lacking, for by it the defendant acquired no right of possession of the property, but simply a right to erect an advertising sign upon the plaintiff’s building and a right of access to the sign when erected sufficient to insure its proper maintenance during the time that the agreement existed. It does not appear that the structure the defendant erected upon this property would not become a part of the freehold, and there was no provision in the agreement which authorized the defendant to remove the structure at its expiration. The structure was erected upon the roof of the building and without some agreement or understanding I think it became annexed to the building which the defendant would not have the right to remove. Prior to the termination of the agreement the defendant gave notice to the plaintiff that it would not continue the agreement, and it is not pretended that after the agreement expired the defendant- did anything in connection with this advertising structure; that he entered at all upon the premises or claimed any right to continue under the agreement.

Under the circumstances here disclosed, whatever may be said to be the relation between the parties during the continuance of the agreement, the fact that the defendant did not remove the bulletin board from the top of the plaintiff’s building during the time that the agreement was in force was not a holding over of the premises which entitled the plaintiff to elect to contiriue the agreement for another year. As a matter of fact the defendant never was in possession of any of the plaintiff’s property. It acquired a right for a limited period to erect a bulletin board upon the plaintiff’s property and maintained upon that bulletin board certain advertisements with the right of access to the roof' of the building so far as necessary to maintain such advertisements., But it certainly cannot be said that at any time the defendant was in possession of the property or that the plaintiff was out of possession. It seems to me that the failure to remove a structure which it is doubtful whether the .defendant had the' right to remove without the consent of the plaintiff was not a holding over or continuing in possession of the plaintiff’s property which authorized the plaintiff to continue the arrangement for another year. The respondent cites several cases of the Appellate Term which sustain the determination that the agreement was a lease, hut so far as they conflict with the views here expressed they must be considered as overruled.

It follows that the determination of the Appellaté Term must be reversed and the judgment of the City Court affirmed, with costs to the defendant in this court and in the Appellate Term.

McLaughlin and Laughlin, JJ"., concurred; Houghton, J., dissented.

Clarke, J.:

I concur solely upon the ground-that leaving the structure which was securely attached to the freehold did not constitute a holding over.

Determination reversed and judgment of City Court affirmed, with costs to defendant in this court and in the Appellate Term.  