
    Samuel Wilder, Resp’t, v. William O. Stace, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    Landlord and tenant—Void lease—Tenancy from year to year.
    Defendant agreed by paroi to rent certain rooms in a building being erected for the term of five years and paid a sum down to bind the bargain, to be applied on the first month’s rent. He had certain improvements made which had been agreed upon and had his name put on the windows, but upon the rooms being completed did not move in or take possession and notified plaintiff that he had no use for them. Held, that the agreement was void under the statute of frauds and imposed no obligation upon either party and that as there was no entry into possession by defendant or any further payment made by him, a tenancy from year to year was not created.
    Appeal from a judgment of the Monroe county court entered on the verdict of a jury, and from an order denying the defendant’s motion for a new trial on the minutes, in an action first tried in the municipal court of Rochester.
    
      J. M. Dunning, for app’lt; J. P. Bowman, for resp’t.
   Dwight, P. J.

In January, 1888, the plaintiff, being engaged in the erection of the Wilder Building in Rochester, agreed with the defendant, by paroi, to lease to him certain rooms therein, on the first floor (2d story), for a term of five years at a rent of $1,325 a year, to be paid monthly, at the expiration of each month. No time was agreed upon for the commencement of the term for the reason that it was uncertain when the building would be completed, and the rooms ready for occupancy, but it was expected by both parties that the defendant might get in on the first day of April. At the time of the agreement the defendant paid the plaintiff $100 “to bind the bargain,” which was to be applied on the first month’s rent. The defendant desiring a more elaborate finishing of the rooms than was in Mr. Wilder’s plan, it was agreed that he might have an oalc floor put in at his own expense,, and a paneled oak wainscoting of the expense of which, if exceeding $300, the plaintiff should allow one-third to be applied on the rent. The extra work was procured to be done -by the defendant. He also in March had his business sign, “ Stace, Tailor” put on the glass of the windows in gold letters. On the 28th day of April the plaintiff notified the defendant that the rooms would be ready for occupancy on the 1st of May. The defendant never moved, either goods or furniture, into the rooms, never had a key, nor ever occupied or took possession of them in any manner, except as above described. On the 24th of May he informed the plaintiff that he should have no use for the rooms, and the latter removed his name from the windows, and in July rented theyrooms to another person for the remainder of the year, from the first of August, at the rate of $900 a year. This action was bi'ought and a recovery had for a year’s rent after allowing the amounts paid by and to be allowed thereon to the defendant and the amount received by the plaintiff from the other tenant.

Whether the recovery can be sustained manifestly depends upon the question whether, on the facts above stated, a tenancy for one year was created in the defendant. Under the doctrine of Laughran v. Smith, 75 N. Y., 205; and Talamo v. Spitzmiller, 120 id., 37; 30 N. Y. State Rep., 186, it seems very clear that this question must be answered in the negative. Á11 the cases agree that under the statute of frauds a yearly tenancy is not created by force of the void agreement for more than one year. That agreement is void, as the statute declares ; and as was said by Earl, J., in Thomas v. Nelson, 69 N. Y., 118, it is difficult to see how such a contract, declared void by the statute, can be held valid for a single hour. The question did not arise on the record as made in that case, but in Laughran v. Smith, supra, Andrews, J., quoted the dictum with approval, and the court gave it authority; holding that such a lease “ created no estate or interest in land, and imposed no obligation upon either of the parties, ” although “ a tenancy was created by the entry of the lessees under the void agreement;” the question being of the character of that tenancy, .and the conclusion that in such a case the law would imply a new contract between the parties corresponding wi-th the void agreement so far as it was not in conflict with the statute.

In Talamo v. Spitzmiller, supra, the second division of the same court further developed the doctrine of the case last considered, and held that there must be a new contract to create a yearly tenancy, and that there must be evidence go establish it; that the paroi agreement for five years was not effectual to create it, nor did the mere fact that the supposed lessee went into possession have that effect; that he having remained in occupation a part of a year only, something more was required to create a tenancy for a year; that while it was not required that a new contract be made in express terms, there must be something from which a contract may be inferred, something which tends to show that it was within the intention of the parties, and they say “ the payment and receipt of an instalment or aliquot part of the annual rent is evidence of such an understanding, and goes in support of yearly tenancy, and, without explanation to the contrary, it is controlling evidence for that purpose.” We must regard the case last cited as controlling authority against the contention of the plaintiff in this ■case. So far from there being any circumstances in this case from which a new contract for a yearly tenancy can be inferred, all the evidence seems to demonstrate that the minds of the parties never met in any understanding except the paroi agreement for a lease for five years, which was absolutely void and imposed no obligation upon either of the parties. No possession was ever taken under that agreement. The commencement of the term was postponed to the first day of May, and after that date there is no evidence that the defendant ever set his foot within the premises to be demised. The extra work which, with the consent of the owner, he caused to be done in the finishing of the rooms, was merely preparatory to his occupation and the lettering on the windows was to the same purpose only. He never paid any “ instalment or aliquot part ” of the rent reserved; the $100 paid in January was “ to bind the bargain ” under the void contract, and it was to be applied on the rent only when a payment of rent should become due. In short, during the term contemplated by the void agreement no act of possession was exercised by the defendant, nor any payment made upon any contract, new or old.-

It is impossible to find in this case any evidence from which a new contract for a yearly tenancy may be inferred, and the exception to the charge of the court in that respect was well taken.

The judgment and order appealed from should be reversed.

Judgment and order reversed and a new trial granted in the Monroe county court, with costs to abide the event

Lewis, J., concurs; Macomber, J., takes no part.  