
    Charles V. Morgan, Respondent, v. Etta Goldberg et al., Appellants.
    (New York Common Pleas—General Term,
    June, 1894.)
    A memorandum, in the form of a receipt for rent, stating that the premises were leased for a certain term, with privilege of a certain number of years in addition, given to the tenant on the loss of his copy of the lease to show that he had a lease of the premises, does not operate as a waiver of a stipulation in the lease for notice of renewal.
    AlPpeal from judgment of a District Court in favor of the landlord in a summary proceeding.
    
      Louis Steckler, for appellants.
    
      H. C. Henderson, for respondent.
   Pryor, J.

In a summary proceeding the tenant asserted a right of possession by virtue of a privilege of renewal. But the privilege of renewal was conditioned on a written notice of at least ninety days before the expiration of the original term, and the trial court negatived the fact of the notice. The testimony on behalf of the tenant is of a character that vindicates the incredulity of the justice. Even upon paper it provokes suspicion, but then, doubtless, the manner of the witnesses was indicative of their untruthfulness. In any event it is not for ns to overrule the decision of the justice on so direct a conflict of evidence. Lynes v. Hickey, 4 Misc. Rep. 522.

Shortly after the death of the original lessee, upon a representation of his widow that her husband’s copy of the lease was lost, and a request that the landlord would “ give something to show they had a lease,” he delivered this paper: Received from Ettie Epstein the sum of sixty-iive dollars on account of rent for house No. 248 East Broadway, leased for five years, with the privilege of five, commencing May 1st, 1888. Said premises are rented at the rate of seven hundred and twenty-five dollars ; ” subscribed by the landlord.

The appellants insist that here was a waiver of the stipulation for notice of renewal in the original lease, but the conten? tion is plainly untenable. On the contrary, the paper was a mere memorandum to certify the fact that the tenant had a lease. It was not intended as a surrender of the lease and the substitution of a new contract of letting, else assuredly its terms would have been more precise and complete. A lease of valuable property for a period of ten years was never so drawn.

The judgment should be affirmed, with costs.

Bookstaver and Bischofe, JJ., concur.

Judgment affirmed, with costs.  