Opinion
October 20, 1966
Judgment unanimously modified on the facts and the law, by vacating so much thereof as gives judgment to plaintiffs, dismissing the complaint herein and dismissing counterclaim insofar as it grants recovery to defendant Bishop, and otherwise affirmed, with one bill of $50 costs and disbursements to defendants against plaintiffs. Plaintiffs sue for wrongful eviction. Defendant corporation counterclaims for unpaid rent accrued prior to the alleged eviction. There are so many defects in the plaintiffs' claim that it would be unnecessarily burdensome to set forth all of them. On the merits it appears that the tenant corporation was in arrears $2,350 on a lease calling for $150 monthly. In this situation, after repeated requests for payment plaintiff's president wrote a letter in which he acknowledged the landlord's unusual forbearance, and stated that as he was unable to make payment he was enclosing the key to the premises. Following this communication, the so-called eviction took place. This letter amounted to a surrender of the premises (see Gray v. Kaufman Dairy Ice Cream Co., 162 N.Y. 388, 394). Thereafter the landlord had the right to re-enter ( Cohen v. Carpenter, 128 App. Div. 862; Wood, Landlord and Tenant, § 540). The lease was terminated and plaintiffs had no right to possession with which there could be any interference. No practical question is presented by the failure of any plaintiff to retrieve any personalty left in the premises. There is no dispute that the property so left has been made available to plaintiffs. Settle order on notice.
Concur — Botein, P.J., Breitel, Rabin, Steuer and Witmer, JJ.