
    Sarah E. Coe, Appellant, v. Elizabeth K. Haight, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1916.)
    Conversion — evidence held not to sustain counterclaim for storage.
    Landlord and tenant — boarding-house keeper’s lien — action for rent — surrender and acceptance.
    Evidence in an action for the conversion of a piano that when defendant, a hoarding-house keeper, refused to deliver it to plaintiff on demand no claim was made for storage but only for damages for plaintiff’s failure to retain a room for a year does not establish a lien for storage pleaded as a counterclaim.
    The language of the statute which gives a boarding-house keeper a lien for accomodations, board, lodging and extras furnished cannot be extended to cover future rent or damages under a yearly hiring of a room.
    
      Where defendant counterclaimed for the balance due for the hiring of a room for a year at -a weekly rate it will be assumed on appeal from a judgment i'or defendant that the hiring was by the year.
    Where it appears that plaintiff gave the koy of her room to defendant who thereafter rented the room, such ' acts constituted a surrender and acceptance from the date of the reletting.
    Where the record on appeal does not show th.e date of defendant's acceptance of the surrender she could not claim rent for the entire period of hiring, and the burden' was on her to show the period for which she was entitled to receive the rents. 'x
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, entered in favor of the defendant after a trial before the court without a jury.
    Foody & Dey (Bartholomew Foody, Jr., of counsel), for appellant.
    Myron Sulzberger (Isidor Enselman, of counsel), for respondent.
   Lehman, J.

The plaintiff herein sues for the conversion of a piano. The answer contains a general denial; a defense that the defendant is detaining the piano by reason of a lien of thirty-three dollars for use and occupation by the plaintiff of part of defendant’s premises where the defendant is a boarding and lodging-house keeper. The answer also contains a counterclaim for the sum of thirty-three dollars for this use and occupation and a further counterclaim of two hundred and twenty-four dollars, being the amount still unpaid for a room which the defendant claims that she leased to the plaintiff for the term of one year from the 1st day of October, 1914, at the weekly rental of eight dollars per week.

At the trial the defendant admitted the plaintiff’s title to the piano but claimed a lien thereon for a charge of thirty-three dollars for storage of the piano and a further lien for the unpaid rent of the room rented by the plaintiff. It appears from the evidence that the plaintiff about October 5, 1914, hired a room in defendant’s boarding-house at eight dollars a week. The defendant claims that the plaintiff agreed to hire the room for a year; the plaintiff denies that she agreed to take the room for any definite period. On or about the 7th day of April, 1915, the plaintiff with the permission of the defendant brought to the boarding-house the piano which forms the subject of this action. The piano was not placed in the plaintiff’s room but was left in the defendant’s living room. The defendant claims that she allowed the piano to be placed in this room upon the plaintiff’s agreement to 1 ‘ make it right ’ ’ with her for the storage of the piano but the plaintiff denies such an agreement. On May 24, 1915, the plaintiff left the defendant’s premises after giving two weeks’ notice of her intention to leave and after paying room rent to that date at the rate of eight dollars per week. At that time the defendant claimed that the room was rented by the year and presented to the plaintiff a bill as follows:

‘‘ October 5,1914 to May 24th, 1915, 33 weeks.
Price by the Season per week $9.00......$297 00
Price paid as per agreement by the year at price per week $8.00.................. 264 00
“ Balance due...................... $33 00 ”

The plaintiff refused to pay this bill and the defendant retained the piano. It further appears that at the same time the plaintiff delivered the keys to the defondant and thereafter the defendant rented the room and received during the unexpired period of the alleged yearly lease the sum of fifty dollars and fifty cents rental for the room. Upon this testimony the trial justice gave judgment ‘ ‘ in favor of the defendant and awarding her One hundred and one Dollars and fifty cents and costs—the value of defendant’s lien and providing that in case the said sum is not paid by plaintiff, defendant is entitled to possession of said piano until said sum herein awarded is collected or otherwise paid.” The amount for which the trial justice rendered judgment is apparently based upon a finding that the room occupied by the plaintiff was hired by the year and that the defendant is entitled to a lien on-the piano for the unpaid portion of the rental of the room less the amount received by the defendant during the summer from other parties.

It is to be noted that the trial judge apparently did not find that the defendant is entitled to a lien for storage on the piano but only for the unpaid rental of the room. As a matter of fact, even if we assume that the plaintiff agreed to pay what was right ” for storage of the piano, yet the defendant utterly failed to establish a lien for storage. In the first place the defendant on May twenty-fourth, when she refused to deliver to the plaintiff her piano, did not make any claim for storage but only for damages for plaintiff’s failure to retain the room for a year; in the second place the defendant failed at the trial to show the reasonable value of the storage of a piano in a boardinghouse parlor. It follows of- course that the judgment nan be sustained only if the defendant on May twenty-fourth had a lien for the unpaid balance of rent of the room for the term for which it was hired. At that time, concededly, the plaintiff had paid the rent of the room up to the date of her departure. The claim of the defendant was really for future rent or for breach of contract to keep the room for a year. The statute, however, gives a lien only for accommodation, board, lodging and extra furnished. Its language cannot possibly be extended to cover future rent or damages under a yearly hiring. Inasmuch as the plaintiff on May twenty-fourth had paid for all accommodation, etc., furnished her at that time, the defendant had no lien on the piano.

Moreover, I do not find in the record any justification for the amount of the judgment. Assuming as we must on this appeal, that the hiring of the room was by the year, the defendant would prima facie be entitled to the rent at the rate of eight dollars per week for the unexpired period of nineteen weeks. The plaintiff however showed that she gave the keys to the defendant and that the defendant thereafter rented the room. Concededly these acts on the part of the defendant constituted a surrender and acceptance at least from the date of the rerenting. Gray v. Kaufman Dairy & Ice Cream, Co., 162 N. Y. 389.

The record does not show the date of the acceptance of the surrender but, inasmuch as the plaintiff has shown that the surrender was actually accepted at some time, the defendant cannot claim rent for the entire period and the burden is on her to show the period for which she is entitled to rent.

Judgment should therefore be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

Whitaker, J., concurs. Pehdletoh, J., concurs in result:

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide event.  