
    Mary Fitzgerald, as Executrix of the Last Will and Testament of James M. Fitzgerald, Appellant, v. Henry V. St. George, Respondent.
    (Supreme Court, Appellate Term,
    June, 1908.)
    Landlord and tenant — Mature of tenancy — Tenancies from year to year and month to month — Creation of tenancy from year to year — Holding over — What constitutes.
    Where a tenant retained the key of the demised premises for thirteen days after the expiration of the term, and certain of his property was not removed until eleven days thereafter, the evidence justifies a finding of a wrongful holding over.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Mew York, first district, borough of Manhattan, in favor of the defendant, rendered after a trial before the court without a jury. •
    Isaac Fromme and Isidor Wells, for appellant.
    August P. Wagener, for respondent.
   Giegerich, J,

The evidence as to holding -over is much more detailed and satisfactory than on the former trial and shows many additional facts. Before, the testimony offered on behalf of the plaintiff consisted of only two or three pages; and the only things shown to have been left on the premises at the expiration of the leasehold term (viz., on October 1, 1906) were certain bales of paper in the basement; and the testimony on behalf of the defendant was given, and left uncontradicted, that efforts were made to move them out, but admission to the elevator could not be secured in time. On the present trial it is shown that, in addition to the bales of paper, there were various empty cases and also shelving or boxes used as such remaining. Before, there was nothing to show that any of these various things were left longer than until the sixth or seventh of October at the latest. This time, it appears that they were not removed until the twelfth, and, in fact, that some of the things were not sold, by the defendant to Chein, the man who purchased and moved them away, until the fifth or sixth of October.

The keys of the premises were retained by the defendant until October fourteenth. On the first of that month they were offered to the engineer of the building, but he .refused to receive them.

Meantime, considerable quantities of bales of goods and empty cases, etc., the latter of which were subsequently sold by the defendant, were left on the premises. Besides this, the defendant entered in the same interval and removed pipes.

I have found no case in the books where such substantial uses of the demised premises for so long a time have been held not to constitute a holding over.

In McCabe v. Evers, 30 N. Y. St. Repr. 833, it was held that, where a tenant moved out before May first, leaving behind a stove and some rubbish, and tendered the keys on May second, it was error to direct a verdict for the landlord, and that the question of whether there was a wrongful holding over should have been left to the jury.

In Manley v. Clemens, 39 N. Y. St. Repr. 199, the term expired at noon on February second. The tenant’s goods were not out until midnight of that day, and even then a desk and safe were allowed to remain until the next day. The court held that the verdict of the jury in favor of the tenant was a just one.

In the present case, the use made of the demised premises by the tenant was of such a substantial character and was so long continued that it cannot be disregarded, especially as there is no evidence in this record of any excuse for such continued use by the tenant of the landlord’s property.

The case for the plaintiff, as now presented, is decidedly stronger than when the case was formerly before this court, and, in my judgment, clearly shows a holding over and falls well within the rule laid down in Cussani v. Thompson, 19 Misc. Rep. 524, and the authorities therein cited.

The judgment should he reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Greenbaum, JJ., concur.

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