Opinion
November 13, 1907.
James H. Bain, for the appellant.
Daniel J. Finn and Walter A. Chambers, for the respondent.
Where a tenant, having a lease for a year, holds over at the expiration of his term, the law implies an agreement on his part to hold for another year upon the terms of the lease, and the option is with the landlord to so regard it. ( Haynes v. Aldrich, 133 N.Y. 287; Ackley v. Westervelt, 86 id. 448; Schuyler v. Smith, 51 id. 309.) That principle, however, is not seriously contended against by the appellant. Her principal claim is that she effectually surrendered possession of the premises on the last of July, 1906. The proof in this respect shows that, on the thirtieth day of July, the defendant wrote a letter to Mrs. McCann's attorneys, who were authorized to act for her in the matter, inclosing the key of the premises, and then left Glens Falls without informing them as to her whereabouts. Before that she had been told that the landlord had elected to regard her as a tenant for another year, and expected her to pay the rent in accordance with the terms of the original lease. The attorneys on July 31, 1906, immediately upon the receipt of the key, wrote two letters to the defendant, in one of which they inclosed the key, and in the other, to a different address, stated that they had returned the key to her in another inclosure, and that in case it did not reach her, and was returned to their office, they would hold it there at her disposal, as the landlord would not consent to a surrender of the lease. This letter was received by the defendant, but the one containing the key was returned to the attorneys, who retained it until the middle of October, when the key was delivered to a new tenant. The court has found upon this evidence that on or about the 1st day of August, 1906, the defendant, in violation of her agreement, attempted to surrender the premises, but that said attempted surrender was not accepted by the landlord, and said premises were not surrendered, and that there was no surrender of the lease prior to the time that the rent for August, September and October, 1906, became due and payable from the defendant under and by virtue of the lease as so renewed. These findings are supported by abundant evidence, and that is decisive of the case against the defendant.
In order to constitute a surrender by operation of law, there must not only be an abandonment of the premises by the tenant, but also an acceptance thereof by the landlord as a surrender. The mere sending of the keys to the landlord did not of itself constitute a surrender. (24 Cyc. 1373.) The landlord's act, however, in procuring a new tenant in October, and putting him in possession of the premises, did constitute an acceptance of the surrender, and from that time the defendant was released from the payment of any further rent, but such acceptance did not relate back to the time when she undertook to surrender by sending the keys to the landlord. She had prompt notice that such surrender would not be accepted, so there was at that time no mutuality between the parties.
The judgment covers only the rent which accrued before the new tenant was obtained. For this the defendant was clearly liable as there had been no acceptance of her proffered surrender of the premises until that time.
There is nothing in the case of Gray v. Kaufman Dairy I.C. Co. ( 162 N.Y. 388), cited by the appellant, inconsistent with this view.
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.