Opinion
November 16, 1961
Appeal by defendant from so much of an order of the Supreme Court at Special Term, entered in Delaware County, as denied its application for summary judgment dismissing the complaint, and cross appeal by plaintiff from so much of said order as denied its application for summary judgment for the relief demanded in the complaint, in an action to recover the agreed rental price of a portable stone crushing plant. The contract was of indefinite duration and hence was terminable at the will of either party ( Dutton Co. v. Goldmann Co., 277 App. Div. 556, 558; Conrad v. Golden, 275 App. Div. 946; Bailey v. S.S. Stafford, Inc., 178 App. Div. 811, 815) and, indeed, the complaint proceeds substantially on this theory. Clearly, defendant terminated the contract by its letter of November 2, 1959, in which it advised plaintiff that the crusher "went off rental on October 24th" and then requested instructions for its return and repeated an earlier inquiry as to the price of the unit, in the event plaintiff wished to sell it. It is abundantly clear, moreover, that plaintiff recognized that the contract had been terminated. Thus, on November 3 he billed defendant for rental to October 23, adjusting the $4,000 monthly rent to $1,333 for the fractional period from October 13 (the lease having commenced July 13) to October 23. At the same time he advised defendant as to the price of the crusher and requested that it be returned promptly if defendant decided not to purchase it; but negotiations for a sale continued for some time thereafter. A contract for rental of personal property having terminated (whether by expiry or by appropriate action of a party), the further retention of the property does not permit the lessor or bailor to treat the contract as continuing nor, of course, to reinstate it by subsequent notice or other unilateral action, as plaintiff in this case attempted to do. ( Chase v. Second Ave. R.R. Co., 97 N.Y. 384, 389; Chamberlain v. Pratt, 33 N.Y. 47; Hood Farm v. Roberts, 254 App. Div. 383, 385.) The authorities cited by respondent are not in point. Indeed, Cammack v. Slattery Bros. ( 241 N.Y. 39), upon which he relies principally, recognized (p. 45) "that defendant might have terminated its contract at any time" but held that "the answer is that it did not as a matter of fact terminate the contract but continued to manufacture and sell" pursuant to it. There is no contention here that defendant used the equipment beyond the date at which it terminated the contract, and it is stated without contradiction that during the Winter months, at least, such equipment could not have been used and had no rental value. It follows that, in bringing action in this form, plaintiff has mistaken his remedy. Order modified, on the law and the facts, by deleting therefrom the provision denying defendant's application for summary judgment dismissing the complaint, and so as to grant such application and direct the entry of judgment accordingly, and, as so modified, affirmed, without costs. Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ., concur.