
    Henry Nieland, Appellant, v. Herman Mahnken, Respondent.
    
      Matures—a tenant by accepting a renewal of Ms lease waives Ms right to remove them.
    
    A tenant who, upon first entering into possession of the demised premises, reserves to himself the right to remove fixtures installed by him upon the premises, loses such right if, upon the expiration of the original lease, he enters into a renewal lease containing no reservation of such right,-and he is not thereafter entitled to remove from the premises fixtures installed by him upon the premises prior to the execution of the renewal lease.
    Appeal by the plaintiff, Henry Hieland, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 27th day of May, 1903.
    
      William J. Martin, for the appellant.
    
      Howard C. Conrady, for the respondent.
   Hooker, J.:

The defendant was the lessee of premises into the possession of which he had first entered upwards of twenty years ago under a written lease. His evidence tends to show that soon after the commencement of that tenancy he entered into an agreement with the plaintiff, the lessor, by the terms of which he should be allowed to remove his trade fixtures during his tenancy. The lease or leases under which he held expired May 1, 1897, and on the 15th of March, 1897, the parties entered into a new lease for the term of five years from the 1st day of May, 1897, which contained the provision that “ at the expiration of the said term, the said party of the second part (lessee) will quit and surrender the premises hereby demised, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted.” At the expiration of the lease evidenced by the agreement of March 15, 1897, the defendant moved out, and before the lease actually expired removed from the premises a watering trough connected with the sewer, plate glass windows set in the outside doors, tiling sunk in cement laid on the front window frames, plumbing screwed to the wall and fastened to pipes running within the walls, and a frame shed in the nature of a stormhouse built to fit the coping and fastened to the wail of the building by hooks. It is undisputed that all this property was in the building at the expiration of the tenancy preceding that beginning May 1, 1897. This action was brought to recover for the use and occupation of the premises for a few days after the expiration of the lease, and for the value of the fixtures removed by the defendant which was proved on the trial to be upwards of $200. The defendant did not offer any evidence to rebut the plaintiff’s, expert evidence in this regard.

On the trial the defendant consented that judgment might be entered against him for the sum of ten dollars for the use and occupation of the premises for the three days he held over after the expiration of the lease, but contested .the right of the plaintiff to recover the value of the property he had taken away from him. There was received in evidence, on the part of the defendant, an offer he had made to the plaintiff before the commencement of this action to return the plumbing and tiling in the windows, and restore them to the condition in which they existed in the premises at the termination of the demise.

The justice before whom the case was tried rendered a judgment for twenty-five dollars in addition to costs, ten dollars of which, we think, must have been taken to represent the rent for the period of time defendant held over and to have been rendered upon the defendant’s stipulation, and fifteen dollars allowed in the judgment as the value of part of the property removed.

Even though the defendant upon entering into possession of the premises in the first place had reserved to himself the right to remove, the fixtures, under the doctrine recently reiterated in Stephens v. Ely (162 N. Y. 79) we think that he was without legal right to do so in this case, in view of the fact that the written lease of March 15, 1897, for. the term of five years, contained no reservation of that right. The result of the trial seems to indicate that the trial court adopted a view contrary to that expressed in the Stephens cáse, unless it be considered that the allowance of $15 in the judgment was to cover the value of all of the property removed by the defendant. If the latter was the view the justice adopted, the judgment must be reversed as against the weight of the evidence, for its value was proved by competent evidence to exceed $200, and the defendant even conceded the competency of most of the witnesses called by the plaintiff to prove value and offered no evidence upon that issue himself.

The judgment should be reversed and a new trial ordered.

Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred.

Judgment of the Municipal Oourt reversed and new trial ordered, costs to abide the event.  