Myers v. Beakes Dairy Co. , 117 N.Y.S. 569 ( 1909 )

Clarke, J. (dissenting):

The rules of law governing the rights of landlords and the liabilities of tenants in cases of “ holding over ” are well settled and do not need restatement. A careful review of the eases is found in Oussani v. Thompson (19 Misc. Rep. 524). Where the tenant fails to deliver possession the law implies an agreement on his part to hold over for a year upon the terms of the prior lease. It lies with the landlord to exercise the option and not with the tenant. (Schuyler v. Smith, 51 N. Y. 309.) The fact that the actual holding over was by a sub-tenant of the lessees does not affect the rule (Haynes v. Aldrich, 133 N. Y. 287, where Finch, J,, said: “ The appellant does not deny the rule [that a holding over amounts to a lease for another year] but seeks to qualify it, so as to mean that it is only where the tenant holds over voluntarily and for his own convenience that the landlord’s right arises, and that it does not so arise when the tenant holds over involuntarily, not for his own convenience, but because he cannot help it.. I am averse to any such qualification.”)

As there is no dispute as to the law the question is reduced to one of fact. There was sufficient evidence to sustain the judgment of the trial court. There was some conflict as to details and questions of credibility were presented peculiarly within the province of the trier of the facts, who had the witnesses before him, for determination. In the opinion of the Municipal Court justice those ques^ • tions have been carefully considered and resolved in favor of the plaintiff. His judgment Jhas been affirmed by the Appellate Term. We should not reverse upon the facts under such circumstances unless there was no evidence to sustain the judgment or said judgment was clearly against the weight of the evidence.

The determination of the Appellate Term should be affirmed, with costs and disbursements to the respondent.

Houghton, J., concurred.

Determination and judgment reversed and new trial ordered, costs to appellant to abide event.