
    James Regan, Respondent, v. William Fosdick, Appellant.
    (City Court of New York, General Term,
    November, 1896.)
    Landlord and tenant — Liability of tenant holding over to double rent.
    The statutory provision* making a tenant holding over liable for double rent for the time he remains in occupancy after the expiration of the' term (2 B. S., Banks’ 9th ed., 1819, § 10) applies where the holding over was not. voluntary or for the tenant’s convenience,, but was' by reason practically of a necessity and because he could hot help it, as in a case where he is. prevented from moving by sickness in the family.
    
      Appeal from judgment in favor of plaintiff, entered upon a verdict directed by the court, and from an order denying a motion for a new trial.
    Joseph M. Keatinge and A. E. Walradt, for appellant.
    William Henry Knox, for respondent.
   O’Dwyer, J.

This is an appeal from a judgment entered upon a verdict directed by the court, and from an order denying a motion for a new trial.

On November 1, 1895, the defendant leased from the plaintiff the dwelling No. 65 East One Hundred and Twenty-fourth street in this city, for six months, ending the 1st day of May, 1896, at a monthly rental of seventy-five dollars ($75), payable in advance.

Defendant went into possession and prior to the termination of the term gave notice of his intention to quit on the 1st of May, 1896.

Defendant did not deliver up possession at the expiration of the term, but continued to hold possession for nineteen days thereafter, and refused to remove therefrom during that time.

At the expiration of the time and for about eighteen days prior thereto, the defendant’s child, who was a member of his family, was sick with scarlet fever, and the board of'health, through its inspector, issued an order to the defendant that he should not leave the premises until the child was through desquamating, and until the premises were ordered to be fumigated.

The defendant quitted the premises on the 19th day of May, the house having been fumigated on the 18th day of May.

The action was brought to recover double rent for the time the defendant remained in occupancy after the expiration of the term. 2 R. S. (Banks’ 9th Ed.) 1819, § 10.

When the defendant held over and remained in the occupancy of the property beyond the expiration of the term without the consent of the landlord, the landlord was entitled to recover double the rent provided in the lease for the time the defendant remained in occupancy beyond the term.

The question, raised upon this appeal was whether this rule of law applied in a case like the present, or where the holding over by the tenant was not voluntary, not for his own convenience, but was by reason practically of a necessity, because he could not help it.

The sickness of the child and the fact that it could not be removed without aggravating the disease, is not open to question on this record.

We think the case of Herter v. Mullen, 9 App. Div. 593, is decisive upon appeal.

It was there held, Bumsey, J., writing the opinion, that it would make the landlord, rather than the tenant, suffer by reason of the misfortune of the tenant, which he, and not the landlord, should bear the burden of.”

And as was said by Judge Finch, in Haynes v. Aldrich, 133 N. Y. 287: “ It would introduce an uncertainty into a rule whose chief value lies in its certainty. The consequent confusion would be very great. Excuses would' always be forthcoming, and their sufficiency be subject to the doubtful conclusions of a jury, and no lessor would ever know when he could safely promise possession to a new tenant.”

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

Conlan and Schuchman, JJ., concur.

Judgment and order affirmed, with costs.  