Holdeen v. Sheffield Farms Co. ( 1942 )

Appeal by the plaintiff from a judgment, entered upon the report of a referee, dismissing the complaint. The referee correctly held that the evidence was insufficient to establish a new lease between the parties. By holding over, however, defendant became by implication a- tenant for an additional term at the old rental, and plaintiff is entitled to a judgment for rental covering the months of October, 1936, and February, 1937. The complaint is broad enough to embrace this claim. Judgment of dismissal reversed, with costs, and judgment granted in favor of the plaintiff for $441.66, with costs. The court disapproves of findings of fact numbered 8th and 9th, and of the 2d, 3d and 4th conclusions of law. The court makes these findings and conclusions: 1. During the period from October, 1936, through to April, 1937, the defendant remained in occupancy of the premises of the plaintiff, and for this period defendant tendered, and -plaintiff accepted and cashed, cheeks in the sum of $220.83 for each month except the months of October, 1936, and February, 1937. 2. Plaintiff is entitled to a judgment for rental accruing for the months of October, 1936, and February, 1937, amounting to $441.66, with costs. Hill, P. J., Bliss, Heffernan, Schenck and Foster, JJ., concur;