
    MANILA HOTEL COMPANY v. THE UNITED STATES
    [No. 404-52.
    Decided March 5, 1958]
    
      Mr. Ernest ScJiein for plaintiff. Mr. John A. O^Donnell was on tbe brief.
    
      Mr. David D. Hochstevn., with whom was Mr. Assistant Attorney General Derry W. Morton, for defendant.
   Whttaeer, Judge,

delivered the opinion of the court:

This case is before us on defendant’s motion to dismiss the petition on the ground that plaintiff’s cause of action accrued more than six years prior to the filing of its petition.

The plaintiff alleges in its petition that on April 10, 1945, it leased its hotel premises in the city of Manila to defendant, and that defendant continued to occupy the same from that date until February 18, 1946, on which date the petition alleges the defendant “relinquished” the premises. Plaintiff’s petition was filed on August 1,1952, and therefore, more than six years after the date defendant relinquished possession of the premises.

The lease provided that the defendant “may terminate this lease by giving notice in writing to the Lessor or by posting notice conspicuously on the premises.” The petition does not allege that such notice was given, but it apparently does not contend that the defendant is obligated for the payment of rent after the date it relinquished possession of the premises.

Plaintiff’s reliance is on the fact that the defendant left in the premises certain personal effects and removable improvements, and that this fact constitutes continued possession of the premises. There is, however, no such allegation in the petition. Nor would it seem to matter whether or not defendant left in the premises certain personal effects or certain improvements which it could have removed had it cared to do so. The lease provided that the defendant—

May use the property for any purpose and may alter or remove any existing structures or improvements and may build and remove additional structures or improvements.

However, there is no requirement that the defendant should remove any structures or improvements it might erect on the premises; hence, its failure to remove these improvements certainly does not constitute an extension of its occupancy of the premises.

It seems plain that the court has no jurisdiction of the action, since it was brought more than six years after the cause of action accrued.

Defendant’s motion is granted, and plaintiff’s petition will be dismissed.

It is so ordered.

Laramore, Judge; MaddeN, Judge; LittletoN, Judge; and Jones, Chief Judge, concur.  