
    John S. Lawrence, Appellant, v. Stephen Hasbrouck, Respondent.
    (Supreme Court, Appellate Term,
    July, 1897.)
    1. Lease — Failure of landlord to execute — Tenancy by the month.
    Where a tenant executes a lease of premises, to' run thirteen months and to be subsequently executed by the landlord who lives in a foreign state, and the landlord fails to' execute the lease until five months laten and after the tenant has abandoned the premises, no legal obligation is created by the lease as between the parties and the landlord is only, entitled to recover for the use of the premises from month to month.
    
      2. Same — Void parol agreement—Term. *
    Where a tenant enters under a void parol agreement to occupy for thirteen months and subsequently pays rent monthly, the tenancy created is one from month to month; and where the tenant enters .in August and abandons in January, he nay remove at the end of any month, and the New York statute, relative to the effect to be given tó the fact that a tenant holds over after the 'first day of May in any year, has no application.
    Appeal from a judgment, of the justice of the Thirteenth District Court in an action for rent in which the plaintiff claimed $200 and was.allowed $50. The plaintiff appeals.
    Wayland E. Benjamin, for appellant.
    T. S. Corey, for respondent.
   Daly, P. J.

In-the beginning of August, .1896, the defendant entered into possession of thé first floor of the apartment-house No.. 200 West One Hundred and Twenty-ninth street, upon an arrangement made with the agent of the landlord, who resided in Michigan, for a lease of the apartment for thirteen months, from the ensuing September 1st, at the yearly rent of $600, payable monthly, with occupation for August free of rent. A lease, bearing date August 6 th, was signed by the defendí nt and left with the agent to be forwarded to the landlord for execution. It was not signed by the latter until the following January, and was tendered to the defendant after he had removed from the premises, pursuant to notice given by him to the agent of his intention to do so. This action was brought for the rent of the four months January to April/ both inclusive, and the defense was that, by -reason of the facts, a monthly tenancy only was established, which .terminated by the removal in January, and that plaintiff was entitled to rent for that month only, which defendant offered to pay. The case was' tried before a jury, and their verdict was for the plaintiff for $50 only, thus finding in accordance with defendant’s contention.

The lease not being executed by the landlord no legal obligation under it was created.. Talamo v. Spitzmiller, 120 N. Y. 37.; Laughran v. Smith, 75 id. 206. It is claimed by plaintiff that defendant consented to^ the delay in forwarding it for execution, but the landlord 'took the risk of the tenant’s terminating the tenancy which had been created by the parol arrangement and declining to receive the lease. The occupation, by the defendant was not under the lease, because the tenant did not become bound thereby, it not being executed by the lessor; and as such occupation was terminable by the landlord at the end of any month for which rent was paid, the tenant had the same right to terminate it; and the landlord could not, by subsequently tendering a lease for the past as well as future occupation, create a new obligation for the. tenant. To hold otherwise would leave a tenant wholly in the hands of the landlord-who could make him a tenant for years, or by the month, at discretion.

Now, is the appellant’s contention well founded, that, in any event, the tenancy continued until the ensuing 1st of Hay, by force of the New York statute? Defendant did not enter under an agreement, silent as to the term, but under a parol agreement void because for more than a year. Where a tenant , enters under such a void agreement and pays rent monthly, a tenancy from month to month is created. People ex rel. Botsford v. Darling, 47 N. Y. 666; Spies v. Voss, 9 N. Y. Supp. 532. If the tenant, under such a void lease, enters on the 1st of Hay in any year and remains over a year, he will be deemed a tenant from year to year, as, by remaining over the 1st of Hay in any year, he loses the right to terminate the tenancy before the expiration of that year. Laughran v. Smith, above. In this case the defendant entered under a parol agreement^ the lease not being executed by the landlord, and, as he paid rent monthly, he became a monthly tenant and had the right to remove at the end of any month.

Judgment'affirmed, with costs.

Bischoff and McAdam, JJ., concur.

Judgment affirmed, with costs.  