
    BLEISTIFT v. DIENER et al.
    (Supreme Court, Appellate Term.
    May 4, 1911.)
    1. Landlord and Tenant (§ 114)—Holding Over After Term—Rights of-Landlord.
    Where a tenant under a demise for a year or more holds over after the end of the term without a new agreement with the landlord, the-landlord may elect to treat him either as a tenant from year to year, and in all other respects as holding upon the terms of the original lease, or may treat him as a trespasser, but cannot treat him as both.
    [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §■ 379; Dec. Dig. § 114.]
    2. Landlord and Tenant (§ 114)—Holding Over After Term.
    In such a case, where the tenants held over for about half a month, and a few days thereafter the landlord sent a man to their new place of business to demand the keys, which they delivered up, the landlord made a conclusive election not to treat them as tenants under an implied lease for a year, and at most would be entitled to recover for use and occupation.
    [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 379; Dec. Dig. § 114.]
    Appeal from Municipal Court, Borough of Manhattan, Sixth District.
    Action by Abraham I. Bleistift against Samuel Diener and others. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.
    Reversed, and new trial granted.
    Argued before SEABURY, LEHMAN, and GERARD, JJ.
    Barnett E. Kopelman, for appellants.
    Rosansky & Goldberg (I. Gainsburg, of counsel), for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   LEHMAN, J.

Plaintiff has recovered a judgment for rent for the month of May of premises occupied by the defendants. It appears from the plaintiff’s testimony that the defendants occupied the premises under a written lease, which expired on May 1st. Thereafter they held over, and used and occupied the premises until about the middle of the month. About May 18th the plaintiff sent a man to defendants’ new place of business to demand the keys, and the defendants delivered up the keys.

“The law is well settled that, when a tenant under a demise for a year or more holds over after the end of his term without any new agreement with the landlord, he may be treated as a tenant from year to year, and in all other respects as holding upon the terms of the original lease. The landlord has an election to treat him either as a trespasser or as a tenant, and it is for the former to determine how he will treat him. * * * But such holding over puts the landlord to Ms election. He must either accept' the tenant as a tenant for a new term, or treat him as a trespasser. He cannot do both.” Goldberg v. Mittler, 23 Misc. Rep. 116, 50 N. Y. Supp. 733.

In this case it seems to me that when the plaintiff demanded the keys, and received and retained them, he made a conclusive election not to treat the defendants as tenants under an implied lease for a year. At most he is entitled to recover for use and occupation, but he cannot claim that the relation of landlord and tenant continued after May 1st.

Judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.  