
    Rebecca F. Macklin, Appellant, v. Dixon McNetton, Respondent.
    (Supreme Court, Appellate Term,
    March, 1900.)
    Use and occupation — Hot maintainable against tenant holding over his year.
    Where a tenant for a year holds over the term, the landlord may treat him as tenant for another year or as a trespasser, but a recovery as for use and occupation cannot be supported.
    Appeal from a judgment in favor of plaintiff, rendered in the Municipal Court, borough of Manhattan.
    Greene & Stotesbury, for appellant.
    Marshall & Rupert, for respondent.
   Per Curiam.

The plaintiff claimed to be entitled to recover of defendant sixty dollars for rent, by reason of the fact that the defendant, while plaintiff’s tenant, held over seventeen days past his term, which had been for a year. The defendant, by answer, admitted all the allegations of the complaint, except allegations as to the election to continue the tenancy of defendant, and as to nonpayment of rent. The latter is undisputed, as it was admitted by defendant, in the evidence. So the only allegation of the complaint which is not admitted is that as to the plaintiff’s election. The judgment was in favor of plaintiff, upon the merits, for thirty-four dollars. According to the opinion of the learned trial justice, this was allowed for use and occupation. The evidence does not warrant the judgment. The defendant was a tenant for a year by reason of the holding over, or he was a trespasser. If the former, the judgment should have been for sixty dollars and costs. If the latter, the complaint should have been dismissed upon the merits.

The defendant states that he told the plaintiff’s agent, prior to the expiration of the term, that, upon certain conditions as to decorating, he “ would keep the place on the same terms,” and that the agent said, they would see about it.” This statement, on the part of the agent, did not authorize the defendant to remain after the expiration of the term. •

It seems that the plaintiff was entitled to the judgment he demanded; that when the demise is for a definite term of one year, at a fixed rent, and the tenant holds over after that term expires, the landlord may treat him as a tenant for another year, and collect rent accordingly. See Herter v. Mullen, 159 N. Y. 33, and Conway v. Starkweather, 1 Den. 115. In the latter case it was said ■that the person holding over “ will be a tenant, if the landlord either receives or distrains for rent accruing after the- end of the original term.”

Judgment reversed and a new trial ordered in the Municipal Court, in the district in which the' action was brought, with costs to abide the event.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  