
    Jeronemus S. Underhill, Resp’t, v. Samuel Collins, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March, 22, 1892.)
    
    Leíase—Surrender—Leasing to another person.
    Id an action for rent of premises after defendant had abandoned them: * the evidence as to whether there was a surrender and acceptance was conflicting. The plaintiff, landlord, had refused to accept the surrender of' the premises from the defendant and told him he should hold him for the-rent; and that if he left them he should rent them for his account. Subsequently defendant left the keys on plaintiff’s desk. Held, that under the facts there was an implied authority to relet the premises by the landlord as the agent of his tenant, and a right to recover the balance off" rent.
    (Follett, Ch. J., dissents.)
    Appeal from a judgment of the general term, second department, affirming a judgment entered upon a verdict.
    
      P. Q. Eckerson, for app’lt; Charles M. Demand, for resp’t.
    
      
       Affirming 33 St. Rep., 961.
    
   Haight, J.

This action was brought to recover rent.

On September 30, 1886, the plaintiff leased to the defendant a: room in the building known as Ho. 50 Broad street in the city of Hew York for the term of three years and seven months. The* defendant entered into possession of the premises under the lease- and occupied them until the latter part of May, 1888, at which time he vacated them and went away. After leaving the premises, he sent the keys by another person to the plaintiff. The keys were tendered to the plaintiff but he refused to receive them, and. they were left upon his desk.

The plaintiff testified to a conversation with the defendant, which occurred before he left the premises, in which the defendant asked him to take the premises off from his hands; that the-plaintiff refused to do so and told him that he should hold him. for the rent, but would lease the premises for his benefit.

After the defendant left the premises the plaintiff went and examined the same and found the doors unlocked. He then returned to his office, took the keys from the desk, locked up the-premises and subsequently rented them to another person. The-defendant had paid the rent up to June 1, and this action was-brought for that which subsequently accrued. The recovery was for the rent accrued less the amount received from the new* tenant.

The defendant claimed that there was a room in the building in which gambling was carried on and that in consequence there was a breach of the covenant of quiet enjoyment on the part of the plaintiff. But upon this issue the evidence was not sufficient, to establish such breach, and the trial court so instructed the jury and no exception was taken thereto.

Upon the trial and after the plaintiff had rested, the defendant moved to dismiss the complaint on the ground that the plaintiff; had accepted a surrender of the premises by leasing them to another party. This motion was denied and an exception taken.

The acceptance by the landlord of the surrender of leased premises would prevent the recovery of rent not already due, land if the landlord takes possession of such premises so surrendered .and relets them, to other parties he will be deemed to have accepted a surrender unless there are facts rebutting this inference.

We must therefore refer to the evidence for the purpose of determining whether the plaintiff intended to accept a surrender. As we have seen, he refused to accept a surrender of the premises at the interview he had with the defendant. He then told him that he should hold him for the rent; that if he left the premises he would rent them for and on his account. It was under these circumstances that the defendant left the premises and sent the keys by another person to the plaintiff. The plaintiff in reletting the premises did only that which he had promised and had the' right to do. He could have left the premises vacant during the unexpired term of the lease and required the tenant to pay the rent as it matured. The reletting of the premises for the benefit of the rtenant relieves him in part of the burthen that he otherwise would have had to bear. He is therefore a gainer rather than a loser by reason of such reletting. It may be true that such reletting would -operate as an acceptance of a surrender of the premises unless there is an agreement, express or implied, that such reletting may .be made. But under the facts disclosed in the testimony to which we have referred, such agreement or authority is implied. McAdam on Landlord and Tenant, §§ 205-210; Morgan v. Smith, 70 N. Y., 537-546; Bloomer v. Merrill, 1 Daly, 487; McKensie v. Farrell, 4 Bosw., 192.

It is claimed that the action should have been for damages and mot for rent accrued. But the relation of landlord and tenant had mot ceased to exist. The reletting, as the plaintiff claims, was .for the defendant and on his account The plaintiff but served the defendant as his agent in the transaction.

In the case of Hall v. Gould, 13 N. Y., 127, the landlord had retaken possession of the premises in consequence of a breach of the lease by the tenant, who had covenanted not to use the premisses for any disreputable business. In that case the re-entry of the landlord was held to terminate the lease, and that rent as such ■could therefore no longer accrue to the lessor, but he had his right of action for damages for the breach of the covenant That ■case has no application to the question under consideration.

The judgment should be affirmed, with costs.

All concur, except Folleto, Ch. J., dissenting.  