Opinion
May, 1912.
Coffin Goldmark (Herbert Goldmark, of counsel), for appellant.
Abram Ellenbogen, for respondent.
Plaintiff's assignor entered into a lease with the defendant, dated October 23, 1909, for certain premises therein described, for a period of eleven months from November 1, 1909, at a rental of $462, payable in instalments of $42 monthly in advance. In August or September, 1910, prior to the expiration of the lease, a new lease was prepared for one year at a rental of $540, payable $45 monthly. This lease was not signed. Defendant testifies that she told the agent that she would not sign the lease at that rental, then told by the agent she would hold over. On the first of October, however, she paid the increased rent. On the first of November she paid the increased rent and the agent inquired about the lease, and she testifies she said, "I told you distinctly I will never sign a lease here. In the first place my eyes are in a bad condition, and my aunt is getting weak, and I don't know what time I will have to give the place up," and "after that I said I wouldn't sign and under no considerations would I stay. He told me at the time it didn't satisfy him. Then I said to him, when I move I will always give you notice." She further testified that she paid the $45 each month, and "nothing was referred to again. I thought my terms had suited him, because if they didn't it was his place to tell me then and there to get out." She continued in possession until June thirtieth. In the early part of June she notified the landlord that she intended to move on June thirtieth, to which the landlord replied: "Do you wish me to try and rent the apartment for you? Your lease does not expire until October 1st, 1911, and this time of the year is very poor for renting. If you desired moving before October first, I would be satisfied if you moved September the first but at present time it would be hard to rent." Defendant without replying to this letter moved June thirtieth. The claim for rent was assigned to plaintiff and this action brought to recover from the defendant rent for the months of July, August and September, on the theory that the lease was renewed. The case, however, was tried upon the theory that the defendant was liable for the rent of July and August, as a tenant holding over after the expiration of her term. The court gave judgment for the defendant. This was erroneous. Where a tenant holds over after the expiration of a lease, without any other or new agreement with his landlord, the law implies a continuance of the tenancy on the same terms and subject to the same covenants as those contained in the original lease, and the option was with the landlord to treat him as a trespasser or as a tenant. The tenant has no such option and holds over at his peril. Schuyler v. Smith, 51 N.Y. 313; Adams v. City of Cohoes, 127 id. 175, 182; Herter v. Mullen, 159 id. 28; Haynes v. Aldrich, 133 id. 287; Union Merchants Realty Imp. Co. v. Roth, 193 id. 570, 575. If, however, the tenant has notice from the landlord that if he retains possession he must pay a higher rent, he must be deemed to assent to pay such increased rent, he cannot hold the premises after such notice and fix his own terms for the rent. Mack v. Burt, 5 Hun, 28; Despard v. Wallbridge, 15 N.Y. 374. In the case at bar, in addition to the new lease which was presented to the defendant, a written notice was delivered to her notifying her that the rent was to be at the increased rate. On September thirtieth the tenant had the option to vacate the premises or hold over. She elected to hold over and on October first paid the increased rent. On October first, the landlord had the option to treat her as a trespasser and remove her from the premises, or as a tenant and accept the rent. They both made their election. The tenant paid the increased rent and the landlord accepted it. Their status became settled and determined. Neither could alter the situation without the consent of the other and making a new agreement. Therefore the statement by the tenant as to the terms upon which she would remain on November first in no way altered the situation. The landlord was not required either to accept or reject the proposition, therefore his silence was not an implied assent. The appellant now concedes that the renewed term must be for eleven months, the same period as the old lease. The term, therefore, would expire on September 1st, and the plaintiff could not recover for more than the rent for the months of July and August, 1911.
The judgment will be reversed and a new trial ordered, with costs to appellant to abide the event.
SEABURY and LEHMAN, JJ., concur.
Judgment reversed and new trial ordered.