Opinion
June 29, 1944.
Appeal from the Municipal Court of the City of New York, Borough of Brooklyn, GUTMAN, J.
Arthur Sheinberg and Seymour D. Altmark for landlord, appellant-respondent.
Joseph S. Catalano for tenant, respondent-appellant.
MEMORANDUM
The exchange of telegrams did not effect a renewal of the pre-existing lease ( Pomeroy v. Newell No. 2, 117 A.D. 800, 804; Slagel v. Huff, 166 Misc. 168, 171, affd. 254 A.D. 925, motion for leave to appeal denied 279 N.Y. 813). The tenant, by retaining possession after expiration of the lease, is deemed to have agreed to the landlord's terms as expressed in the proposed renewal lease ( McKee v. Fredk. Loeser Co., Inc., No. 66, April, 1932, Term), and consequently the landlord was under no obligation to comply with the provisions of the original lease with relation to the redecoration of a portion of the apartment and the allowances against the rent. This determination is without prejudice to any rights which the tenant may have under the terms of the reletting.
The final order should be modified upon the law by increasing the award in the landlord's favor to the sum of $165, together with appropriate costs in the court below and dismissing the counterclaim on the merits, and as so modified affirmed, with ten dollars costs to the landlord.
MacCRATE, SMITH and STEINBRINK, JJ., concur.
Ordered accordingly.