
    Eleanor I. Stewart, Respondent, v. Harry A. Briggs, Appellant.
    Third Department,
    November 15, 1911.
    Landlord and tenant—holding over by tenant — rights of landlord — when holding over does not create tenancy for another year — condemnation of lands during tenancy — appeal — modification of judgment — costs — recovery finder fifty dollars.
    A tenant who holds over, after the expiration of a definite term of a year or years may be treated by his landlord either as a trespasser or as a tenant from year to year. ' The right to treat him as a tenant for a new ■ term does not spring from the contract, but is a penalty imposed by law.upon the trespassing tenant.
    But not every holding over creates a new term at the option of the landlord. Thus, where ón the day a lease ' expired the city of New York had acquired title to the lands by condemnation and was in actual occupation by preparing to store water thereon, and the tenant remained in possession through the sufferance of the city in not ousting him, there was not such holding over as entitled the original landlord to treat the tenant as a tenant for another year. Nor was there such possession as ■ entitled the original landlord to sue the tenant for trespass.
    The right to bring an actioh for trespass must exist in order to give the landlord the right to elect to treat one "holding over as a tenant for a new term. • ’ ■
    Where all the facts in an action for rent have been found, the Appellate Division may modify the judgment by deducting therefrom sums which the landlord is not entitled to recover.
    Where in an action brought in a County Court the recovery, as reduced by the Appellate Division is under fifty dollars, the defendant is entitled to costs. ■-
    Appeal "by the defendant, Harry A. Briggs, from a judgment of the County Court of Ulster county in. favor, of the plaintiff, entered in the office of the clerk of said county on the 27th day of February, 1911, upon the decision of the court rendered after a trial before the court without a jury.
    
      Alfred D. Van Buren, for the appellant.
    
      Martin Conboy and Virgil B. Van Wagonen, for the respondent.
   Houghton, J.:

This action is brought to recover one month’s rent under the lease considered by this court in Stewart v. Briggs (138 App. Div. 701), and also to recover six months’ rent at the rate specified in the lease because the defendant held over at the expiration of his term.

It is unnecessary to state the facts as they are the same appearing on the former appeal, except that it now appears that the contractors in behalf of the city of New York had more completely occupied the farm appurtenant to the dwelling house which the defendant leased from the plaintiff, and dug-up the land and built a railroad, practically cutting off the house from the highway.

On the former appeal we held that notwithstanding the title was in the city of New York, to the knowledge of both parties, the defendant could, if he saw fit, bargain with the plaintiff to pay her rent, and that he was bound to keep his agreement as long as the lease existed unless the city should sooner take actual possession and oust him from the premises or compel attornment to it. That decision did not go to the extent ■ of holding that the defendant was hable to pay rent at the stipulated price as long as he might occupy, or that holding over by bim after the expiration of the lease bound him for an additional term at a like rent, and we do not think such a result followed.

A tenant who holds over after the expiration of a definite term of a year or years may be treated by his landlord’ as a trespasser or as a tenant from year to year. The right of the landlord to treat the holdover as a tenant for a new term does not spring from the contract of the parties but is the penalty imposed by law upon the trespassing tenant. (Kennedy v. City of New York, 196 N. Y. 19, 23; United Merchants's Realty & Imp. Co. v. Roth, 193 id. 570, 576.) While the rule giving the landlord the right to treat the tenant who holds over as a tenant for a new term from year to year is very strict, it is not every holding over that creates such term at the option of the landlord. A holding over because of death or extreme sickness at the time the lease expires is not such a holding over as creates a new lease. (Herter v. Mullen, 159 N. Y. 28.) If the landlord has parted with his title during the existence of the lease and the tenant has attorned to the grantee, the right of election does not exist in the original landlord but through passing of title and attornment falls to the new owner, and he can either bring an action for trespass or elect to treat him as a tenant for a new term.

• In the present case on the day the lease expired the city of New York owned the land'and was in actual occupation óf it preparing for the storage of water thereon. While in a sense the plaintiff was in possession through the defendant as her tenant bécauseof the sufferance of the .city in not actually ousting bim or her, she was not in such possession as entitled her to bring an action for trespass against the defendant for remaining on the premises after his lease with her had expired. The right to bring an action for trespass must exist in order to give the privilege of electing to treat the holdover as a tenant for a new term.

There was no idea oh the part of the defendant that by holding over he was. assenting to a lease for another year for he was insisting that he was not even obliged to pay the rent which he had agreed with the plaintiff to pay to her. While this attitude alone would hot relieve the defendant, not only the law. but the facts, we think, prevented the plaintiff from electing to treat the defendant as a tenant for another year.

The defendant is liable for the thirty-five dollars which he agreed to pay the plaintiff for rent for the month of November, but he is not liable for the remaining rent with which the judgment charges him. All the facts are found and it is proper for us to modify the .judgment by directing that there be deducted therefrom the sum of two hundred and ten dollars, with interest, and that judgment be entered against the defendant for the sum of thirty-five dollars, with interest, only. . The recovery being under fifty dollars the. defendant would be entitled to costs and a judgment in accordance herewith is directed.

The judgment should be modified by reducing the recovery of the plaintiff, to thirty-five dollars and interest, with costs of the trial court to defendant to be taxed, and as so modified affirmed, without costs to either party.

All concurred.

Judgment modified by reducing plaintiff’s damages to thirty-five dollars and interest, with costs of the trial court to the defendant to be taxed, and as so modified affirmed, without costs to either party.  