
    Charles L. Pickett, App’lt, v. Edward B. Bartlett et al., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed November 29, 1887.)
    
    Lease—Consteuction of.
    The plaintiff’s assignor demised to the defendants a certain bonded warehouse. The lease was executed by both parties, and after a description of the property, continued “to have and to hold the above described premises for the term of one year from * * * . And the said party of the second part hereby agrees and promises to pay the said rent * * * and to pay the rent for said term, and also for such further time as the party of the second part may hold the same,” etc. The defendants, in consequence of their inability to remove certain goods stored in said premises without the consent of the government officials, continued to occupy said premises for a month after the end of the term demised. Held, that the lease did not continue in force beyond the term of one year specified in and created by it, and that the hoi ling over was on the defendants’ covenant solely. It was not wrongful, nor such a holding over as makes the tenant a wrongdoer and enables the landlord at his option to treat as a trespasser or hold him for the rent of the second year.
    Appeal from a judgment of the general term of the court of common pleas of the city and county of New York, affirming a judgment entered upon a verdict of a jury in favor of defendant, and also affirming an order denying a motion for a new trial upon the judge’s minutes.
    
      
      Charles H. Knox, for app’lt; William W. Goodrich, for resp’ts.
   Danforth, J.

On the first day of November, 1880, the plaintiff’s assignor demised to the defendants certain premises, and among others a bonded warehouse known as the Baltic Stores. The lease was executed by both parties, and after a description of the property contained these words: “ To have and to hold the above-described premises for the term of one year from the 1st day of November, A. D., 1880, yielding and paying therefor the rent of sixty-five hundred ($6,500) dollars per year. And the said party of the second part hereby agrees and promises to pay the said rent in equal quarterly payments, and to quit and deliver up the premises to the party of the first part, or his attorney, peaceably and quietly, at the end of said term in as good order and condition, reasonable use and wearing thereof excepted, as the same now are or may be put into by the party of the first part, and to pay the rent for said term, and also for such further time as the party of the second part may hold the same, and not make or suffer any waste thereof.”

The plaintiff alleged by his complaint that the year for which the premises were demised to the defendants, ended on the first day of November, 1881, but notwithstanding that, “the defendants continued in occupation and possession, and did not surrender nor offer to surrender possession thereof, but held over,” and the lessor elected to hold them as tenants for another year. After its expiration and in February, 1884, this action was brought to recover rent alleged to be due for the last three-quarters of the second year. At the trial it appeared that bonded goods belonging to the defendants’ customers and placed by them in the stores before November 1. 1881, were left there until December 23, 1881, in consequence of the defendants’ inability to remove them without the consent of the government officials.

On that day the government locks were removed, the defendants’ bond as warehousemen canceled, padlocks put on the doors and the keys left at the office of the American Tack Company, where in a certain contingency the plaintiff had directed they should be left.

There was evidence by paroi and otherwise tending to show a surrender of the premises at the expiration of the term, and that question was litigated. At the close of the evidence each party requested the court to direct a verdict in his favor, but the learned trial judge submitted the case to the jury as one in which a verdict either way might, in one or another view of the evidence, be warranted by it, and said: “All that you have to decide is whether the defendants surrendered those premises at the time stated. If they did, this suit, being to recover rent after that time, cannot be maintained.” The jury found for the defendants. The special term denied a new trial, and after judgment of affirmance by the general term, the plaintiff appeals to this court.

The learned counsel for the appellant contends that the case turns on the proper construction of that portion of the lease above quoted, his claim being that “ the legal effect of the holding over was, at the election of the lessor, to make the lessees liable for another year’s rent, payable at the same times in the year and'in the same way as the lease provided for _the_previous year,” thus invoking the benefit of the rule which in favor of the landlord implies an agreement as by tacit consent, that the tenant who holds over after the expiration of his term shall be deemed to hold for a year upon the terms of the prior lease His principal argument is that the covenant of the lessee to pay for “such further time, after the expiration of the year, as he shall hold the premises, must, so far as it implies a limitation, be disregarded, and give place to the legal implication already referred to. But the agreement is to be construed by the intention of the parties at the time of making it, as that intention may be gathered from its subject matter and the terms in which it is expressed. The lease related to a bonded warehouse, which, by the provisions of law, must, while occupied in that character, be used solely for the purpose of storing warehoused. merchandise and be placed in charge of an officer of the customs, who, together with its owner and proprietor, should have the joint custody of all the merchandise stored therein. IT. S. Rev. Stat., § 2960. Its use was subject to governmental regulations, and it was as to receipt, storage and delivery of merchandise from it, altogether removed from the control of the lessee.

It may well be that these considerations furnished a reason for the clause which purports to limit the lessee’s liability for rent to such time beyond the year as he should actually hold the premises. The plaintiff relies upon an implied promise, but the lease contains an express covenant, and to it the implied promise must yield. The lease does not continue in force beyond the term of one year specified in and created by it, and the holding over must be deemed to have been on the defendants’ covenant solely. For the term of one year he agrees to pay the specified rent, and also, to pay the rent for such further time as he may hold the premises. Thus the parties anticipated a holding by the tenant beyond the term and expressly provided for it by agreement. It, therefore, was not wrongful nor such a holding over as makes the tenant a wrongdoer and enables the landlord at his option to treat him as a trespasser or hold him for the rent of the second year, In Schuyler v. Smith (51 N. Y., 309), cited by the appellant, there was no agreement in reference to a holding after an expiration of the term, and the principle upon which that case turned has no application here. Nor do the other cases cited by the appellant require any different conclusion. Western Trans. Co. v. Lansing (49 N. Y., 499), was an action for specific performance by the landlord, of a covenant _ not unlike the present, but which the lessee claimed entitled him to renewal of the lease for a term like that originally .granted. But the court held he was not entitled to it and the whole reasoning of the judge in "that case aids the defendants here, for it shows that the implication upon which the plaintiff relies, cannot be indulged in.

Other propositions are argued by the appellant and have been examined. We do not find that they point to any error in the judgment of the court below. It should, therefore, be affirmed.

All concur, except Ruger, Oh. J., not voting.  