Ballou v. Carton , 4 Silv. Sup. 582 ( 1889 )

Merwin, J.

The claim of the defendants is that from, and after May 1, 1885, the lease and term were surrendered by operation of law, and the defendants thereby discharged from all liability for rent. There was no express surrender. There was no agreement between the defendants and Ballou on the subject. The defendants subleased to Hubley, such lease expiring May 1, 1885. This action is for rent accruing after that date, over and above what Ballou received from Hubley & Baxter. The latter remained in possession without objection from defendants, but no arrangement between them and defendants, or between them and Ballou, is shown. They stayed there, and paid to Ballou $125 a quarter, being at the same rate they paid prior to May 1, 1885. The main circumstance to support the position of the defendants is the receipt by Ballou of the rent from Hubley & Baxter. In Talbot v. Whipple, 14 Allen, 180, it is said that any acts, which are equivalent to an agreement on the part of a tenant to abandon and on the part of the landlord to resume possession of demised premises, amount to a surrender of a term by operation of law. There must be some act which implies that botli parties have agreed to consider the surrender as made. Beall v. White, 94 U. S. 389. A surrender is implied when another estate is created by the reversioner or remainder-man, with the assent of the termor, incompatible with the existing estate or term. Coe v. Hobby, 72 N. Y. 145; Smith v. Kerr, 108 N. Y. 36, 15 N. E. Rep. 70. It will not be implied against the intent of the parties, as manifested by their acts. In Smith v. Nicer, 2 Barb. 180, it is said by Judge Harris that a lessor, who has consented to a change of tenancy, and has permitted a change of occupation, and received rent from the new tenant as an original and not as a sub tenant, cannot afterwards charge the original tenant for rent accruing during the occupation of the new tenant. A similar rule was applied in Page v. Ellsworth, 44 Barb. 636, as applicable to a party holding over after the expiration of the term. Upon this subject Judge Mullen, in Bedford v. Terhune, 30 N. Y. 463, after referring to several eases, says: “It will be seen that in all of the cases a mutual agreement between the lessor and the original lessee that the lease terminates must be shown. It is not necessary that the agreement should be express; it may be inferred from the conduct of the parties. The occupancy by some other than the lessee is, of course, a circumstance to show a surrender; but as the new occupant may enter as the tenant of the lessee, or as his assignee, or even as a trespasser, and thus his occupancy be consistent with the continuance of the first lease, it is absolutely essential that it should be clearly proved that the original lessee assented to the termination of his term. In short, it must bo proved that the lessor and lessee mutually agreed to a surrender of the term, and, that proved, the original tenant is no longer liable, but the new tenant (if there is one) is liable. ” In Wilson v. Lester, 64 Barb. 431, it was held that the mere receipt of rent from the assignee oí the lease will not have the effect to discharge the original lessee, when there is no proof of the surrender of the premises, and an acceptance of the assignee as tenant. So in Laughran v. Smith, 75 N. Y. 206, it was held that the fact that the plaintiff, with knowledge that defendant had ceased to occupy, collected and accepted from the occupants rent accruing after defendant left, did not discharge defendant from liability, and did not establish a surrender or a new letting. In Winant v. Hines, 6 N. Y. St. Rep. 261, where the tenant left before the expiration of the term, and the landlord relet for the rest of the term at a reduced rent, it was held that the landlord could recover of the original tenant the balance of the rent under the original lease, after crediting what he received from the new tenant. In the present case, the original lease has not yet expired. Eor aught that appears, the defendants can resume possession for the balance of the term at any time, subject to such rights as Hubley & Baxter may have as tenants holding over. In the lease to them the defendants reserved certain privileges. For aught that appears, they continued to have those privileges during the subsequent occupancy of Hubley & Baxter, and during the time covered by the rent here sued for. Ho contract is shown between Ballou and Hubley & Baxter, so that the only obligation held by Ballou is the one against the defendants. Did the receipt by Ballou, after the termination of the under-lease, of rent at the same rate he had before received it from the same parties, indicate an intention to release defendants, and accept the under-tenants as his? It did not have that effect before, as adjudicated in the action brought for the balance of the rent prior to May 1, 1885. There is nothing to show a different intention afterwards. The presumption is that it was received on the same basis. The form of the receipts is substantially the same. It was not received as upon an original tenancy, for there was no promise by Hubley & Baxter to pay Ballou, and there was therefore no acceptance by Ballou of Hubley &i Baxter in place of defendants. Without objection from defendants, and to their knowledge, Ballou received and receipted for such sums as Hubley & Baxter were willing to pay, and which presumptively represented the rent due from Hubley & Baxter as holding over on the under-lease. This was not inconsistent with Ballou retaining his claim on defendants for the balance. We think the defense of surrender by operation of law was not made out, and plaintiffs properly recovered. Judgment affirmed, with costs. All concur.