
    John Gray App’lt, v. Kaufman Dairy and Ice Cream Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Landlord and tenant—Surrender.
    Where the evidence, in an action for rents, is that the landlord, upon receiving the keys from the tenant, notified him that he did not accept a surrender of the premises and intended to hold him for the rent, but would rent the premises for his account, to which the tenant made no reply, the-question whether there was a surrender should be submitted to the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion to set aside the verdict and for a new trial.
    
      Miller & Miller, for app’lt; M. Linn Bruce, for resp’t.
   Pratt, J.

The only doubt .in my mind about the disposition of this case by the learned trial judge arises on plaintiff’s request “to go to the jury on the question whether there was a surrender as matter of fact.” The testimony tended to show that defendant sent plaintiff the keys of the premises about October 31, 1893, and that they were received by plaintiff November 2, 1893. On the next day, November 3, 1893, plaintiff wrote defendant that he did not accept the surrender ; that he intended to hold defendant forth e rent; and that he should rent the premises for defendant’s account, and hold for the damages that might be sustained. With this testimony before us. I do not see why the jury would not have been justified in finding, from defendant’s silence, that it assents to the terms thus prescribed, which were that plaintiff should let the premises for its account. Such a finding would have been warranted by the authority of Underhill v. Collins, 132 N. Y. 272; 43 St. Rep. 785. If the jury had so found, then, by the same authority, there would have been an implied agreement between the parties that plaintiff might relet the premises for defendant’s account; and that would have been sufficient to justify a finding that there was no acceptance of the surrender,—in other words, that there was no surrender. I have therefore, though with much hesitation, reached the conclusion that a new trial should be ordered, with costs of this appeal to the plaintiff if it shall be found that there was no surrender, and to the defendant if it shall be found that there was a surrender.

All concur.  