
    Frank H. McCabe, Resp’t, v. Henry F. Evers, App’lt.
    
      (City Court of New York,
    
    
      General Term,
    
    
      Filed April 30, 1890.)
    
    Landlord and tenant—Effect of holding over a question of fact.
    Defendant, prior to May 1, removed from a store occupied by Mm, leaving a stove and some rubbish and tendered the key on May 2. In an action for subsequent rent the court directed a verdict for plaintiff. Held, error; that the leaving of the stove and retention of the key did not necessarily constitute a continuance of the tenancy; that whether this was done wilfully or accidentally or through excusable or unavoidable circumstances bore strongly on the question of intent in the tenant, and that the case should have gone to the jury to determine whether there was in fact a wrongful holding over.
    The evidence shows that the defendant removed from the demised premises just prior to May 1,1889. On. that day there was a stove and some rubbish in the store formerly occupied by him. The lcey was tendered to the landlord on May 2d.
    The action was for rent, after May 1, 1889, on the theory that these circumstances authorized the landlord to treat the holding over by the tenant as wrongful, and as an implied contract of rehiring, on the terms of the former demise. The trial judge so held, and directed a verdict in favor of the plaintiff, notwithstanding the fact that the defendant asked to go to the jury on the questions: (1.) Whether the defendant was in possession of the property on May 1st. (2.) Whether there was a tortious holding over sufficient to imply a new tenancy.
    The defendant appeals.
    
      JE. R. De Grove, for app’lt; S. Greenbaum, for resp’t.
   Per Curiam.

To enable the landlord to hold the tenant for a renewed term (after the expiration of his lease), the holding over must be wrongful and tortious. Schuyler v. Smith, 51 N. Y., 314; Pickett v. Bartlett, 107 id., 282; 12 N. Y. State Rep., 36; Smith v. Allt, 7 Daly, 492.

Judge Davis, in Gibbons v. Dayton, 4 Hun, 451, states what does not constitute the wrongful holding over contemplated. He says: “ The litter and filth and worthless fragments and articles, which tenants are often accustomed to leave behind them, have never been held to constitute a continuance of the tenancy. The landlord’s remedy, if any, for such an injury is quite different from treating the tenancy as renewed by the omission to carry everything away, whether valuable or not.” This excerpt may be applied to the stove left on the premises by the tenant. Next as to the key. The key is sometimes looked upon as the symbol through which possession is delivered and returned, but sometimes keys are lost or misplaced and cannot be returned.

The English court of common pleas held in Gray v. Bompas, 11 C. B., N. S., 520, that in order to have the effect of creating a new tenancy by holding over, there must be an actual holding over, and that the implication does not arise from a constructive holding over, as by the accidental detention of the key of the premises, beyond the term. The next question that suggests itself is where the line is to be drawn. This at times is a nice question, and no immutable rule can be laid down concerning it Where, however, minds may differ concerning the fact whether there is a tortious holding over or not, the question is one for the jury. Indeed, in Gray v. Bompas, supra, the comí held that “ the intention with which a tenant holds over is always a question for the jury.” This is .probably true in cases where the facts are capable of two interpretations, but not where the facts are clear and the conclusion irresistible. In the present case, the facts in regard to the holding over are not of conclusive character, and different interpretations might be placed upon the acts of the defendant. Whether the stove was left and key retained until May 2d wilfully or accidentally or through excusable or unavoidable circumstances, has much to do with the question of intent, of good faith and of bad faith, and these are all considerations for the jury.

The case ought to have gone to the jury to determine whether there was in fact a wrongful holding over by the defendant or not.

For this error the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

McAdam, Oh. J., Ehrlich and Giegerich, JJ., concur.  