
    Thomas J. Scully, Appellant, v. Margaret Roche, Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1912.)
    Landlord and tenant — leases and agreements in general — rent and advances—holding over after expiration of term — summary proceedings.
    Where a tenant holds over after the expiration of her lease without a new agreement with the landlord, the law implies a continuance of the tenancy on the terms and subject to the covenants of the original lease, and the landlord, at his option, may treat the tenant as holding over or as a trespasser.
    ■ Where a tenant, after notice from' her landlord that if she retains possession she must pay an increased rent, elects to hold over, she will be deemed to assent to pay the increased rent, and cannot after such notice hold the premises and fix the rent.
    Appeal by the plaintiff from a judgment of the Municipal Court .of the city of New York, borough of Manhattan, seventh district, rendered in favor of the defendant after a trial by the court without a jury.
    Coffin & Goldmark (Herbert Goldmark, of counsel), for appellant.
    Abram Ellenbogen, for respondent.
   Page, J.

Plaintiff’s assignor entered into a lease with the defendant, dated October 23, 1909, for certain premises therein described, for a period of eleven months from November 1, 1909, at a rental of $462, payable in instalments of $42 monthly in advance. In August or September, 1910, prior to the expiration of the lease, a new lease was prepared for one year at a rental of. $540, payable $45 monthly. This lease was not signed. Defendant testifies that she told the agent that she would not sign the lease at that, rental, then told by the agent she would hold over. On the first of October, however, she paid the increased rent. On the first of November she paid the increased rent and the agent inquired about the lease, and she testifies she said, “ I told you distinctly I will never sign a lease here. In the first place my eyes are in a bad condition, and my aunt is getting weak, and I don’t know what time I will have to give the place up,” and “ after that I said I wouldn’t sign and under no considerations would I stay. He told me at the time it didn’t satisfy him. Then I said to him, when I move I will always give you notice.” She further testified that she paid the $45 each month, and “ nothing was referred to again. I thought my terms had suited him, because if they didn’t it was his place to tell me then and there to get out.” She continued in possession until June thirtieth. In the early part of June she notified the landlord that she intended to move on June thirtieth, to which the landlord replied: “Do you wish me'to try arid rent the apartment for you? Tour lease does not expire until October 1st, 1911, and this time of the year is very poor for renting. If you desired moving before October first, I would be satisfied if you moved September the first but at present time it would be hard to rent.” Defendant without replying to this letter moved June thirtieth. The claim for rent was assigned to plaintiff and this action brought to recover from the defendant rent for the months of July, August and September, on the theory that the lease was renewed. The case, however, was tried upon the theory that the defendant was liable for the rent of July and August, as a tenant holding over after the expiration of her term. The court gave judgment for the defendant. This was erroneous. Where a tenant holds'over after the expiration of a lease, without any other or new agreement with his landlord, the law implies a continuance of the tenancy on the same terms and subject to the same covenants as those contained in the original lease, and the option was with the landlord to treat him as a trespasser or as a tenant. The tenant has no such option and holds over at his peril. Schuyler v. Smith, 51 N. Y. 313; Adams v. City of Cohoes, 127 id. 175, 182; Herter v. Mullen, 159 id. 28; Haynes v. Aldrich, 133 id. 287; Union Merchants Realty & Imp. Co. v. Roth, 193 id. 570, 575. If, however, the tenant has notice from the landlord that if he retains possession he must, pay a higher rent, he must he deemed to assent to pay such increased rent; he cannot hold the premises after, such notice and fix his own-terms for .the rent. Mack v. Burt, 5 Hun, 28; Despard v. Wallbridge, 15 N. Y. 374. In the case at bar, in addition to the new lease which was presented to the defendant, a written notice was delivered to her notifying her that the rent was to he at the increased rate. On September thirtieth the tenant had the option to vacate the premises or hold over. ' She elected to hold over and on October first paid the increased rent. On October first, the landlord had the option to treat her as a trespasser -and remove her from the premises, or as a tenant and accept the rent. They both made their election. The tenant paid the increased rent and the landlord accepted it. Their status became settled and.determined. Neither could alter the situation without the consent of the other and making a new agreement. Therefore thé statement by the tenant as to the terms upon which she would remain on November first.in no way altered the situation. The landlord was not required either to accept or reject the proposition, therefore his.silence was not an implied assent. The appellant now concedes that the renewed term must he for eleven months, the same period as the old lease. The term, therefore, would expire on September 1st, and the plaintiff could not recover for more than the rent for the months of July and August, 1911.

The judgment will be reversed and a new trial ordered, ‘with costs to appellant to abide the event.

Seabury ‘and Lehman, JJ., concur.

Judgment reversed and new trial ordered.  