
    Alfred H. Thorp, Resp’t, v. John M. Philbin, App’lt.
    
      (City Court of New York, General Term,,
    
    
      Filed November 23, 1888.)
    
    1. Landlord and tenant—Implied agreement creating relation.
    A landlord let premises to his tenant for a year at a rent agreed upon, and previous to the termination of the year notified him that he would not again let the premises except at an increased rent specified. Held, that the tenant by holding over after the end of the year became a tenant for the succeeding year at the increased rent.
    2. Evidence—Copy oe telegram—Admissibility op as evidence.
    On the trial of an action for rent due for a period in the latter term a copy telegram was received in evidence Held that there being no dispute that the telegraphic message emanated from the landlord, there was a presumption that the telegraph company did its duty properly in the usual way, and that the original corresponded with the copy sent.
    '3. Same—Record op action—When irrelevant.
    
      Held, that the record in another action to which defendant was not a party, was not admissible in evidence.
    
      Appeal from a judgment upon a verdict for plaintiff rendered by the jury for three months’ rent, with interest, and for costs.
    The complaint averred that the defendant, by lease, hired the premises for a year from and after May 1, 1886, at a yearly rent of $1,800, payable monthly in advance, and that thereafter, about April 28, 1887, the landlord notified defendant that if he continued in possession of premises after May 1, 1887 (the day when said existing lease terminated), the rent of said premises would be $2,400 a year; and that upon such notification the defendant continued on in possession for a long time after May 1, 1887.
    ' The answer admitted the said leasing of the premises from May 1, 1886, and denied notice of increased rent, and it denies all liability for any increase of the rent commencing May 1, 1887, and claims that said landlord let, accord ing to law, the premises to him (defendant) at merely a reasonable rental for the same, and that said premises were not reasonably worth more than $1,200 per annum, commencing from May 1, 1887.
    The answer also alleges that on May 1, 1887, and upon the expiration of said preceding lease, this defendant continued in possession of the premises by the permission of said landlord, and, further, sets up a counter-claim in tort.
    The answer is otherwise a general denial.
    The court, at the trial, denied defendant’s motion for a new trial, and the defendant appeals also from the order denying such motion.
    
      R. D. Harris, for defendant-appellant; L. J. Morrison, for plaintiff-respondent.
   Pitshke, J.

This suit is for three months rent. The tenant held over on May 1, 1877, beyond his term, for the period sued for herein, after written notification from the landlord that the premises would not be relet under the rate of $2,400 per year, subsequent to said date. No actual agreement was entered into, however, on such tenant’s part or behalf, with the said landlord, nor was said notification ever revoked on the landlord’s part, directly or indirectly.

Although the minds of these parties did not meet, the law stepped in and made a binding contract for them, for on May 2, 1887, the tenant was yet in possession, holding over, and thereby on that day (the rent having theretofore been payable in monthly instalments, in advance) a complete cause of action had arisen, by operation of law, which could be successfully prosecuted without regard to what occurred afterwards. Giles v. Comstock, 4 N. Y., 270.

The law, from the continuance in possession, implied at once a contract on the tenant part to renew the tenancy for another year. Laughran v. Smith, 75 N. Y., 210.

And the amount recoverable, that day, would be at the rate mentioned in such notification from the landlord. Despard v. Walbridge, 15 N. Y., 374; and see Hazeltine v. Weld, 73 N. Y., 160, 161.

A new tenancy at a higher rent having thus commenced, impliedly, it continued on for another year from May 1, 1887.

The landlord’s right to treat the tenancy as continuing, with the rent increased pursuant to the notification, is unaffected by the fact that the tenant directly refused to renew the hiring. Conway v. Starkweather, 1 Denio, 113; Schuyler v. Smith, 51 N. Y., 309; Dorr v. Barney, 12 Hun, 259.

By retaining possession after May 1, 1887, the defendant became, ipso facto, bound for the year ensuing at the increased rent, and he could not thereafter terminate his liability by abandoning possession before the expiration of the year. Laughran v. Smith, 75 N. Y., 205, affirming 11 Hun, 311.

The relation of “landlord and tenant ” having been once established, continues until “severed” by mutual agreement of the parties or some new act or proceeding to such effect, by implication of law. Ackley v. Westervelt, 10 Week. Dig., 391; affirmed 86 N. Y., 448.

It follows, the defendant by his retention of the premises on and after May 1, 1887, after notification of the increase of rent for a new holding, became freshly liable as tenant at plaintiff’s option, for the ensuing year at such higher rent; and the landlord did not lose his legal “option” to treat defendant either as a “trespasser ” or a “tenant” holding over until the commencement of this action, which alone was a binding exercise of that option. Benedict v. Bank Commonwealth, 4 Daly, 171; Rosevelt v. Giles, 7 Hill, 201.

As regards the received “copy-telegram,” allowed in evidence, no error was committed on the trial. It is beyond dispute that the telegraphic message, therein contained, emanated from the landlord, and that being clear, the presumption is that “the telegraph company” did its duty properly in the usual way, and that the “original” corresponded with the copy sent to the tenant representative; and hence, under Oregon S. Co. v. Otis (100 N. Y., 453, 454) such ‘c copy ” was prima facie admissible, without production of the original. On its face, this telegram, as delivered, showed it was in response to the letter of April 22, 1887, to the landlord (A. S. Thorp) from Mr. Harris, who noted as the tenant’s attorney, asking the “terms” for said tenant’s continuance in possession after May 1, 1887, and said telegram was the “notification” above referred to, and it informed such tenant that the landlord would not re-let for a short period (less than a year) and that the price of the premises would be $2,400 a year.

The propositions of said telegram were reiterated and again insisted on in the landlord’s letter of May 6, 1887, which is fair confirmatory evidence that said telegram came and emanated from the landlord. In connection with the tenant’s said letter of April 22, 1887, said telegram, plainly transmitted in response thereto, was proper to go to the jury. 1 Q. B., 814; 4 Bing. N. C., 229.

Notwithstanding all this, the defendant continued on in posssession to hold the premises for many months after May 1, 1887. He thereby became liable as above stated at the higher rent. The “holding over” concludes the tenant as he thereby deprives the landlord of opportunity to let to other tenants. Smith v. Allt, 4 Abb. N. C., 214.

The character or record of the action by McDermott v. Harris was not legal evidence herein as a binding election or as res adjudicaba, being between other parties, in which matter this defendant was not concerned; nor did it otherwise affect the present parties with respect to this controversy. The testimony therein had no bearing relative to the issues therein, which are based on the defendant’s aforesaid retention of the premises in question.

The same or similar reasoning applies to the “disposses precept” offered herein, upon which the proceeding was not conducted to any adjudication. See People ex rel. Jay v. Bennett, 14 Hun, 66.

The exceptions taken by the defendant appellant are all without force, and the verdict is right.

The judgment and order appealed from should therefore be affirmed, with costs.

Browne and Ehrlich, JJ., concur.  