
    Moses Schloss, Appellant, v. Mary Huber, Respondent.
    (Supreme Court, Appellate Term,
    July, 1897.)
    T. Lease — Monthly tenancy — Evidence.
    .Where a .person has -been a tenant of the same premises for eleven years, under various landlords, she may prove, as against her present landlord, upon the question- whether she is a tenant by' the year or 'by thé month, receipts given by former landlords and- conversations had with former agents tending to show that her, tenancy was by the month; and where the receipts of the present landlord are general in form, specified no term, and .the rent has month, it is a fair conclusion that a tenancy continued to be paid by the :y by the month still exists:
    Same —¡-Admissions.
    
      A statement made by the agent of the present landlord, at a timé when the tenant asked for á reduction of rent, to the effect that “ if she didn’t like it she could leave ” is evidence by the' year. that the-tenancy was. not one
    
      3. Same — Holding over May 1st. ■
    Where a continuous arrangement for a hiring by the month exists, the fact that the tenant holds over the 1st day of May does not bring the case within our statute, creating a presumption that there shall be a further tenancy for another year, as the statute operates only where no term has been fixed by agreement.
    Appeal by plaintiff from a judgment of the justice of the First District Court, in favor of defendant, in an action for rent of Ho. 248 Avenue A, for the month of February, 1897, upon an alleged yearly hiring terminating May 1, 1897. The defense was that the hiring was by the month and that defendant vacated the premises in J anuary, Judgment was rendered for defendant.
    Herbert J. Hindes, for appellant.
    Joseph Steiner, for respondent.
   Daly, P. J.

The tenant had been in possession of the premises for about eleven-years, when she moved out in January, 1897, and the dispute is as to whether she was a monthly tenant during the whole period or whether, having been originally a tenant by the month under previous landlords, she became a tenant by the year under a special agreement with the plaintiff, or, by virtue of the Hew York statute, became a tenant for a term expiring on May 1st, in the absence of any agreement as to term. As all disputes as to special agreements must be deemed, by the judgment of the justice for defendant, to have been determined by him, in her favor, we find that the evidence offered on her behalf is ample to sustain .the judgment. • •

From the written receipts produced by the defendant, given to her when she paid her rent monthly, down to the year 1893, it appears that the letting was by the month, each receipt specifying Rented for one month only.” It was claimed by plaintiff that receipts given by his agent in 1895, and subsequently, contained no such statement, but were general in form. It was not claimed that those receipts specified any term, and, as defendant continued to pay her rent monthly, in the absence of a new agreement, and she denied any new agreement, the facts support a finding that the original arrangement for a monthly tenancy continued.

Defendant testified that plaintiff’s ágént told her, iu .¡November, rent, that if she did not like it she could leave, which was satisfactory evidence, if believed by the justice, that the defendant was not i there were a continuing arrangement for a monthly hiring, the fact that the tenant remained over May 1st in any year did not bring the case within the ISTew York statute, which operates only where no term is fixed by agreement.

The admission in evidence of the receipts, given by former landlords of the premises to the defendant, original hiring and its continuance. Conversations with former agents were competent for'the same purpose, as the'hiring was through such agents- and the agent of the plaintiff, and not with the landlords directly. There was some ajttempt to show surrender, but it failed, and as it showed, on the contrary, that there was no acceptance, plaintiff was not harmed by it,' but. benefited. The retention of the key by plaintiff, after it was refused "by the landlord’s agent after, defendant" had vacated the premises, did not constitute a continuance of the tenancy.

Judgment affirmed, with costs.

Bischoff and McAdam, JJ., concur.

Judgment affirmed, with costs.  