
    Myndert A. Vosburgh, Respondent, v. Henry Corn, Appellant.
    
      Landlord and tenant—allowing aU the tenant's property to remain upon the premises constitutes a holding over — an agreement to release a tenant after a certain date.
    
    The act of permitting all the tenant’s property situated upon demised premises to remain after the expiration of the term, in the same condition as before its expiration, constitutes a holding over by the tenant.
    An agreement between a landlord and tenant that the tenant is to be released after a certain date does not discharge the liability of the tenant if he continues to occupy the premises after such date, as the law will imply from such occupation a new agreement to pay.
    ' Appeal by the defendant, Henry Corn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of March, 189% upon the verdict of a jm-y, and also from an order entered in said clerk’s office on the 13th day of March, 189% denying the defendant’s motion for a new trial made upon the minutes.
    
      George Hahn, for the appellant.
    
      Ezekiel Fixman, for the respondent.
   Hatch, J.:

The action is to recover the rent of certain premises based upon a holding over after the expiration of the term. The defense was a denial of the relation of landlord and tenant between the parties, and an affirmative claim that the letting was to the defendant and certain named associates conducting business, as an incorporated concern, under the name of “ The Dealing Automatic Safety Electric Systems for Railways.” For a further defense the defendant averred a surrender by the defendant of the premises and an acceptance of such surrender by the plaintiff. The verdict has established that the defendant rented the premises individually, and the evidence justified that finding.

The only question, therefore, which requires consideration relates to the surrender of the premises. It is without dispute that after the term had expired the property of the association continued to remain upon the demised premises. The court ruled as matter of law that such occupation constituted a holding over. In this respect, we think that the ruling was correct. The evidence established that all of the property of the association was permitted to remain upon the leased premises in the same condition as before the expiration of the term, and the conclusion, therefore, was that the occupation remained the same as before. This constituted a holding over within the clear meaning of the law. There is a class of cases which hold that the question of whether there has been a holding over by a tenant may become a question of fact. This question has arisen in cases where there was a clear intent to surrender possession, accompanied by negotiations to that end, and the removal of, the great bulk of the property from the premises. (Frost v. Akron Iron Co., 1 App. Div. 449; Excelsior Steam Power Co. v. Halsted, 5 id. 124.) In the first of the above cases the evidence would have warranted a finding that there was an actual surrender of the premises by. the tenant, and that what happened thereafter was by an arrangement between the parties. The court held that the case presented a question .for the jury and that it Avas error to direct a verdict. The second case" is in principle the same, and its ruling was based upon the first. We do not question but that a case of holding over may be so doubtful that determination of it may not be made as matter- of law, as where tire tenant has, left upon the premises fixtures and small articles of little value Avhich he intends to abandon, or where the removal of the property has been practically accomplished. .Such are the cases of Rorbach v. Crossett (19 N. Y. Supp. 450), Avhere the property left Avas fixtures and worthless articles, and the keys Avere surrendered and accepted by the landlord ; McCabe v. Evers (9 N. Y Supp. 541), where a stove and some rubbish Avere left, and the keys Avere tendered the day following the expiration of the lease ; Manly v. Clemmens (14 N. Y. Supp. 366), where the landlord refused to renew the lease, and the tenant began moving out and continued to midnight of that day, when he had removed, everything except a desk and safe, which he removed the next day. Some of these cases are reviewed in Haynes v. Aldrich (133 N. Y. 287). The holding in that case Avas that where the tenant and property had not been removed at the expiration of the term, but notice had been given that a surrender would be made, and the removal was accomplished on the fourth day after the termination of the lease, it constituted a holding over, although a person was then sick in the house and could not-be safely -removed earlier. While the court in that case does not deny that cases may exist of so doubtful a character that the court may not answer the question, yet such a rule has no application where there is in fact a holding over, even though it may have been involuntary upon the part of the tenant and beyond his power to avoid. In the present case, from all that appears; it was as. much the duty of the defendant to remove the property as it was the duty of any of his associates. Indeed, as. to the plaintiff, the sole duty rested upon him, and if he desired to make a surrender under his lease it became incumbent upon him to see that the property was removed and the premises vacated on the.expiration of the term. It became optional Avith the plaintiff, when no removal was had, to treat the défendant as holding "over or as a trespasser, unless the plaintiff released him from liability as a tenant. In order to accomplish this result a new agreement was required. (Manheim v. Seitz, 21 App. Div. 16.)

It is claimed that the evidence warranted such a finding, and that the defendant ivas entitled to have such question submitted by the court to the jury. The declaration of the defendant, that he would no longer be responsible for the rent after the first of May, would not work any change in his liability, whether the declaration was oral or in writing, or both. We so held in the Momh&im case.' It must be borne in mind that the conventional relation of landlord and tenant existed between the parties, and that the occupation of the association was the occupation nf the defendant. In order, therefore, that a release from such relation should be worked, the evidence must have established that there was a surrender by ttye defendant of the term which he held, and a consequent release from liability!

It is with this relation in view that we are to examine the charge. The court was asked to charge that if the defendant notified the plaintiff before the expiration of the term that he would be under no further responsibility for the rent after the first of May, and the plaintiff agreed or assented to this, the defendant would not be liable. The court refused to charge as requested, and the defendant excepted. This request and refusal are to be considered in connection with what the court did charge upon this subject. At the request of the defendant, the court charged that the defendant could not be made liable unless he continued to occupy the premises after the first of May. And, further, that if prior to or on the first of May the premises were surrendered and plaintiff accepted such surrender and took possession, there could be no liability. We think the charge as a whole was as favorable to the defendant as he was entitled. Liability was finally made to rest upon the' ground that the continued, occupation must have been that of the defendant. This liability would not have been at all affected by an agreement that defendant was to be released upon the first of May, if thereafter he continued to occupy the premises, as the law would imply from such occupation a new agreement to pay. The jury under the submission were authorized to find that there was a surrender of the term, and that the defendant did not continue to occupy and hold over. This was all that the defendant was entitled to have submitted under the evidence, and was the entire defense upon this subject which he averred in his pleading. The jury answered both questions adversely to the defendant’s contention and thereby established his liability.

The judgment should be affirmed,, with costs.

All concurred.

Judgment and order affirmed, with costs.  