
    The Broadway Building Company, Respondent, v. The Moore Filter Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1914.)
    Landlord and tenant — lease — provision of — expiration of term — action for rent.
    Where a covenant for the renewal of a renewal of a lease provides that either party may cancel any renewal by four months’ written notice before the expiration of the then existing, term, the failure to give such notice operates as a renewal of the lease.
    A lease provided that should the premises become unoccupied the landlord should have the right to re-enter and thereupon the tenancy should terminate, in which event the tenant should pay the excess of the rent reserved over all rent received by the landlord for the residue of the unexpired term. Two months before the expiration of the term the tenant gave notice of intention not to renew and vacated the premises the day before the term ended, having paid all rent due. Neither the landlord nor the new tenant went into possession until the tenth of the following month. Held, that an action for rent commenced against the original tenant before the end of said month was not premature; that the making of a new lease with another tenant prior to the first day of said month did not operate either, as a surrender and acceptance, or as a waiver of the time of giving notice, so as to discharge defendant from his liability for rent.
    -- Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the. .■plaintiff. - -
    Frueauff" & Robinson (Watson B. Robinson and Robert S. Sloan, of counsel), for appellant.
    uiWilder, Ewen & Patterson (John Ewen, of counsel), "fob respondent. '
   Guy, J.

The plaintiff corporation sues to recover from the defendant corporation rent for the month of sMay,.1913, alleged to be due under an alleged renewal of a written lease dated February 2,1912, for the term qf .pne year, to commence May 1, 1912, and end May 1,193.3.

-■ - The -9th clause of said lease contains the following provision: “It is distinctly, understood and agreed ,'that this lease and every renewal thereof shall be ..renewed for a further term of like duration as the aforesaid ter-m; but either the landlord, or the tenant „may cancel any renewal hereof on giving to the other written notice of such cancellation on or before the 7first day of January next preceding the expiration of ■the.then existing term.”

- By- the 8th clause of the lease it is further provided that if and when the premises or any part thereof shall .become unoccupied, then the landlord shall have- the ..right to re-enter and take possession of the premises ■ “ and thereupon the tenancy shall’determine; ” and in suche-vent the tenant shall pay to the landlord the excess of the amount of rent reserved, over the amount of rents which shall be received by the landlord during the residue of the unexpired term, “ which said excess shall be payable in monthly payments on the last day of each and every month.”

The evidence shows that defendant paid all rent due under the lease up to May 1,1913; that in March, 1913, it gave notice to plaintiff of its intention not to renew the lease, and that it intended to vacate the premises on April thirtieth; that plaintiff, in reply, advised the defendant that it would not accept a surrender of the premises; that'during the month of April defendant asked plaintiff’s permission to use the elevator to move out its furniture, which permission was granted; that on April thirtieth, defendant vacated .the premises, sent the keys to plaintiff, dropping them on the desk of one of plaintiff’s employees, and that plaintiff, while retaining the keys, advised defendant that it would not accept a surrender of the premises.

The evidence further shows that, prior to May first, ■the plaintiff entered into a lease of said premises with another lessee to take effect May first, but that actual possession under said lease was not given to said lessee until May tenth.

It is contended by the defendant-appellant that the provision of the 9th clause of the lease did not constitute an actual renewal leasing of the premises, but merely provided the terms on which such a renewal might be made. It is clear, however, from the language of the 9th clause that it did constitute a mutual agreement between landlord and tenant to renew the lease on the expiration of each year, unless notice should be given by either landlord or tenant, on or before January first of each pending year, of intention not to renew. ' It is also contended by the defendant-appellant that the making of the lease with another lessee in April was, first, a waiver of notice of non-renewal; second, a surrender and acceptance, and, third, that in any event it operated under the 8th clause of the lease to terminate the lease, and that whatever sum might become due thereafter would only be for excess rent under the 8th clause of the lease, which would not become due until the. end of the month of May, and as this action was commenced on May 2, 1913, it was prematurely brought. I am of the opinion that neither of these contentions on the part of the appellant is sound. Had the new lessee gone into possession on May first, it doubtless would have operated as a termination of the lease to defendant on that date, and would have relieved it of the obligation to pay rent on May first; but, as neither the landlord nor the new lessee went into possession until May tenth, whatever obligation toward the new lessee the plaintiff may have assumed could not affect either defendant’s right of possession nor its obligation to pay on the first day of May the rent for the ensuing month. In view of plaintiff’s specific notice to defendant that it would not accept a surrender of the premises on April thirtieth, it is equally fallacious to claim that the making of a lease with another lessee prior to May first operated either as'a surrender and acceptance or as a waiver of the time of giving notice, viz., before January 1, 1913. It was but a prudent effort in the interest of defendant as well as of plaintiff, in view of defendant’s announced determination to abandon the premises, for the landlord to use all reasonable diligence by the early letting of the premises, pursuant to the provision of the eighth clause of the lease, to minimize the amount of excess which defendant would be obliged to pay after abandonment of the premises. Defendant’s obligation to pay rent accrued on the first day of May. It at that time had full right of possession, its offer of surrender had been rejected, and the placing of another tenant in possession on May tenth did not relieve it of its obligation to pay rent, but merely represented the basis of a counterclaim for such sum as was collected by plaintiff for the rent of said premises from May tenth to May thirty-first, amounting to ninety dollars and forty cents, which sum, though not counterclaimed, has been allowed by plaintiff and deducted from the amount of the judgment in this action.

The various exceptions taken to the admission or exclusion of evidence involve these same questions of law and furnish no sufficient ground for reversal.

The judgment should, therefore, be affirmed, with costs.

Page and Whitaker, JJ., concur.

Judgment affirmed, with costs.  