
    Marie Spies, Resp’t, v. Philip Voss, App’lt.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed April 7, 1890.)
    
    1. Lease—Duration oe—City oe New York.
    Defendant’s wife made the agreement to rent premises of the defendant. and stated that if certain repairs were made she would stay a long time, for five or eight years. There was no written lease, and no term agreed upon, and the rent was payable monthly in advance. Reid, that the tenancy was not from month to month, but the case fell within the statute making agreements for occupation of premises in New York city, where no duration of term is specified, terminate on the 1st day of May.
    2. Same—Surrender.
    Defendant vacated the premises, and offered the keys to the landlord, who refused to accept them. They were afterwards left at the landlord’s house, and the latter endeavored to relet. Reid, that there was no surrender and acceptance of the lease.
    Appeal by defendant from a judgment of this court, entered upon the verdict of a jury, directed by the court, for the sum of $310, being for five months’ rent of apartments in ¡No. 230 Bast Tenth street, in the city of ¡New York, at fifty-eight dollars per month for five months from INovember, 1887, to March, 1888, both inclusive, and interest.
    
      Felix Jellenilc, for app’lt; Jacob Fromme, for resp’t.
   Daly, J.

There was no written agreement for the occupation of the premises, and no term agreed upon, and the question is whether the tenancy continued - to May 1, 1888, or was for a month, or from month to month, and whether there was an acceptance and surrender of the lease.

The wife of the tenant made the agreement on his behalf; she said that if the rooms were painted and fixed up, she would stay a long time, for five years or eight years. She was told that the rent was fifty-eight dollars a month, payable monthly in advance. The painting was done, and the tenant moved in a few days after May 1, 1887, paying rent from May 1. A receipt was given for one month’s rent, for each month up to and including September 1, 1887. The tenant moved out October 1, 1887, returning the key of the premises, which was retained, the landlord endeavoring to relet the premises.

This case seems to fall within the statute which provides that agreements for the occupation of lands or tenements in the city of ¡N"ew York which shall not particularly specify the duration of such occupation shall be deemed valid until the 1st day of May next after the possession under such agreement shall commence, and the rent under such agreement shall be payable at the usual quarter days for the payment of rent in the said city unless otherwise expressed in the agreement.” Here the duration of the occupation was not particularly specified; it was evidently intended to be for longer than one month and not to be for one month or from month to month, as defendant claims it was. In the case of Wilson v. Taylor, 8 Daly, 253, relied upon by defendant, there never was any agreement as to the terms of hiring, but the tenant had remained in possession six years paying a monthly rent of $7.50 in advance. It was said in that case that in the absence of any agreement valid or invalid as to the duration of the term, or as to an annual rent, the rule seems to be that the intervals between the payments determine the length of the tenancy; citing Steffens v. Earl, 40 N. J. Law, 137, where it was held that where there is no evidence out the mere fact of payment at intervals of a week or a month the implication is that the renting is a monthly or a weekly one, just as the payment is monthly or weekly. In The People ex rel. Botsford v. Darling, 47 N. Y., 666, it was held that where the tenant is in possession under a parol agreement void by the statute of frauds and had occupied for a year paying the rent monthly, a tenancy from month to month is created. If there had been in this case a specific agreement by parol for five years or for eight years which would be void under the statute of frauds, and the tenant went into possession, paying a monthly rent, a tenancy from month to month would have been created under the authority of the case last cited. If nothing had been said concerning the term and the hiring had been at a certain monthly rent, a tenancy for a month only would have been created. But in the present case the parties contemplated a longer occupation than a month, as is apparent from the conversation between them; but as their agreement did not particularly specify ” the duration of the term the case is within the statute fixing the term as expiring on the 1st day of May after entering upon possession. The fact that the rent was fixed at fifty-eight dollars a month and was payable monthly does not affect the question, as the statute includes cases where the agreement provides how and when the rent shall be payable.

There was no surrender and acceptance of the lease. The tenant vacated the premises and offered the keys to the landlord, who refused to accept them, saying that the tenant had hired the premises for a year. The next day the keys were left in the landlord’s house, who afterwards entered the premises and endeavored to relet, succeeding finally in doing so for the month of April, 1888, for which no rent is claimed. Under the authority of our general term, in Winant v. Hines, 14 Daly, 187; 6 N. Y. State Rep., 261, re-entry and reletting by the landlord after the premises are abandoned and the key returned by the tenant do not constitute a surrender and acceptance, without further proof. If this decision seems to be in conflict with the case of MacKellar v. Sigler in this court, 47 How., 22, it may be noticed that in the latter case there was evidence that the landlord not only relet the premises but made alterations therein as well as repairs, acts taken together held to be inconsistent with the continuance of the tenancy.

The judgment should be affirmed, with costs.

Bischoff, J., concurs.  