
    Abraham Rosenberg, Resp’t, v. Harris Lustgarten, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 7, 1891.)
    
    Landlord and tenant—Liability of tenant holding over.
    Defendant, who was a tenant of plaintiff, told him he would move on May 1. Plaintiff then put up a notice, gave the defendant a few days to move, accepted the keys on May 4th, and took possession. Held, that plaintiff’s conduct was inconsistent with the theory of a new term, and that defendant was only liable for use and occupation for the time he held over with plaintiff’s consent.
    Appeal from a judgment rendered by a district court in the -city of Hew York for the fourth judicial district.
    
      Nathan S. Levy, for resp’t; John Fennel for app’lt.
   Bookstaver, J.

This action was 1 ' to recover rent for the month of May, 1891. The ansv general denial and surrender and acceptance.

The defendant had been the tenant o or several months before the 1st May, 1891. From the . appears that there had been some talk about an increased rent after the 1st of May, and according to plaintiff’s testimony the defendant at first agreed to remain, but afterwards told plaintiff that he would move on the 1st of May. Ho lease was executed, and it appears from plaintiff’s own testimony that although the first notice was taken down after the tenant said he would stay, yet after his notification that he would move the landlord, either personally or through some one by his authority, put up a new motice to let which was on the premises upon the 1st of May. .It is also uncontradicted that the landlord had agreed that the defendant might take a few days to remove from the premises, and also that the tenant, on the 4tli of May, 1891, gave up the keys of the premises to the housekeeper of the building and. that the plaintiff thereafter went into possession.

Where a tenant holds over, the landlord may treat him either as a trespasser or a tenant. Witt v. Mayor, 6 Robt., 451; Schuyler v. Smith, 51 N. Y., 315. But such holding over puts the landlord to his election; he must either accept the tenant as a' tenant, for a new term or treat him as a trespasser; he cannot do both. If he held him as a tenant he had no right to put up a-notice “ to-let,” and no right to take possession pending the term.

I think in this case the landlord must, from the undisputed, evidence, be held to have elected to hold the defendant as a trespasser; his acceptance of the keys and taking possession on the-4th of May was consistent with this and inconsistent with the-theory of a new term. Hence the tenant would only be liable-for use and occupation during the time he held over with the-landlord’s consent.

This being so, the landlord was entitled to judgment for four days use and occupation; $5.74, with $2.50 costs, only. Hazeltine v. Weld, 73 N. Y., 156; Dillon v. Anderson, 43 id., 237.

The judgment should, therefore, be reduced to $8.24, including-costs, and as so reduced should be affirmed. And inasmuch as-appellant offered to allow judgment for this amount in the court-below, he should have the costs and disbursements of this appeal-

Bischoff, J., concurs.  