
    John J. Sullivan, as Sole Surviving Trustee under the Last Will and Testament of John J. Worden, Deceased, Respondent, v. George Ringler & Company, Appellant. (Action No. 3.)
    
      A holding over by a sub-tenant may be treated, by the lessor as a renewal of the lease by the lessee.
    
    The fact that a lessor has waived a covenant in the lease prohibiting sub-letting, and has allowed the lessee to sub-let the premises, does not relieve the lessee from his covenant to surrender possession at the expiration of the term or prevent the lessor from treating the act of the sub-tenant, in holding over after the expiration of the term against the consent of the lessee, as a renewal of the lease by the lessee for another year, although the lessee instituted summary proceedings to evict the sub-tenant the day after the termination of the lease, and on the third day thereafter dispossessed the sub-tenant and -on the fifth day thereafter delivered the keys of the premises to the lessor.
    Appeal by the defendant, George Ringler &: Company, 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 28th day of July, 1900, upon the verdict of a jury rendered by direction of the court.
    
      J. Aspinwall Hodge, Jr., for the appellant.
    
      De Witt Bailey, for the respondent.
   Sewell, J.:

There is only one question which it is necessary to consider in the disposition of this appeal, .and that is whether .the holding over by the sub-tenant made the defendant, as a matter of law, a tenant for another year upon the terms of the prior lease.

It is without dispute that the lease ended by its terms on May 1, 1898, which was Sunday; that a petition was filed by the defendant in the Municipal Court on the second day of May, and a precept issued returnable on that day requiring Wallace, the sub-tenant, to show cause why he should not be dispossessed. An answer was filed by the sub-tenant, and the case adjourned to May third, when a warrant was issued to dispossess him, which was executed during that evening. The keys of the premises were delivered to the plaintiff on May fifth, when they were returned, and the defendant was notified that the plaintiff elected to treat the lease as continuing another year.

The law of this State is well settled to the effect that where a tenant holds over, the landlord may treat him as a trespasser or as a tenant for another year and collect rent accordingly. (Schuyler v. Smith, 51 N. Y. 313; Adams v. City of Cohoes, 127 id. 175, 182; Herter v. Mullen, 159 id. 28.) The mere length of time that a tenant holds over the term is not the test of liability (Frost v. Akron Iron Co., 1 App. Div. 449), and that it is not necessary that it should be voluntary .was expressly held in the well-considered case of Haynes v. Aldrich (133 N. Y. 287), where the holding over by the defendant was from the first to the fourth of May, and it was sought to be excused by the fact that the first day of May was a holiday; on the second day of May there was difficulty in engaging trucks, and a sick boarder could not be moved with safety until the fourth: Judge Finch, in discussing this defense, said: “ This court held in Commissioners of Pilots v. Clark (33 N. Y. 251) that the rule is too well settled to be disputed that where a tenant holds over after the expiration of his term the law will imply an agreement to hold for a year upon the terms of the prior lease; that the option to so regard it is with the landlord and not with the tenant, and that the latter holds over his term at his peril. In Conway v. Starkweather (1 Den. 114) the tenant had notified the landlord of Ms intention not to remain for another year, as was the fact in the present case, but, nevertheless, did hold over for a fortnight, and the fact of the notice was held to be immaterial, the court sáying, the act of the plaintiff in holding over has given the defendants a legal right to treat him as tenant, and it is not in his power to throw off that character, however onerous it may be.’ The appellant does not deny the rule, but seeks to qualify it so as to mean that it is only Where the tenant holds over voluntarily and for his own convenience, that the landlord’s right arises, and that it does not so arise when the tenant holds over involuntarily, not for his own convenience, but because he cannot help it. I am averse to any such qualification. It would introduce an uncertainty into a rule whose chief value lies in its certainty. The consequent confusion would be very great. Excuses would always be forthcoming, and their sufficiency be subject to the doubtful conclusions of a jury, and no lessor would ever know when he could safely promise possession to a. new tenant.”

The rule was slightly relaxed in the case of Herter v. Mullen (supra), but only to the extent of holding that if the tenant’s removal at the expiration of his lease is rendered impossible by inevitable accident Or the act of God, without fault of the party sought to be charged, he will be excused, at least so far as it creates a liability for another year. The holding over in the case at bar was not unavoidable: delay in the strict meaning of the term. It is true that the defendant acted under a stress of circumstances, but they were of his own creating. His inability to surrender posses-' si'on was not the result of force, coercion, inevitable accident, or the act of God. It grew out of his. own voluntary act in putting a subtenant in possession of the premises, and making such an agreement with the sub-tenant that he was unable to deliver possession at .the expiration of his term. • ■

.It is conceded that the plaintiff waived the covenant.m the lease prohibiting sub-leasing,, and that the defendant was at liberty to sublet the premises ; but this circumstance did not change the relation of the parties' Or relieve the .defendant from his covenant. to. surrender possession at the termination of the lease, or from the consequence of his sub-lessee, Wallace, holding over the term. Having entered into an absolute and express agreement to deliver possession of the premises at the expiration of his term, and being charged with that duty, he could not relieve himself from his engagement or duty by sub-létting the premises, or by any other voluntary act which rendered performance impossible. We think there was a holding over by the defendant within the fair and reasonable rule which permits the landlord to continue the lease for another year ; and, as none of the defendant’s exceptions were well taken, the judgment should be affirmed, with costs.

It is not necessary to discuss the question relating to the amendment of the case on appeal, the respondent having admitted on the argument that he had waived the covenant in the lease prohibiting sub-letting, and that the defendant had the right to sub-let the premises. The appeal. from the order denying the motion to amend should, therefore, be affirmed, without costs.

Judgment unanimously affirmed on law and facts, with costs. Order unanimously affirmed, without costs.  