Dorsey v. the Rustic Diner

This motion was granted from the Bench and the plaintiffs permitted to introduce such additional evidence as they desired with the design of establishing that the option contained in the lease to the premises upon which the diner owned by the defendant corporation, stands, was exercised.

The evidence falls short of showing, even if it could be found that the notice of intention to renew was given the lessor, that a new lease in writing for the additional term was ever entered into.

The distinction is pointed out in City Coal Co. vs. Marcus,95 Conn. 454, 459, between a covenant to extend or continue a lease and one to renew it. As demonstrated in the opinion in that case, no new lease is required to be executed if the covenant be one to extend or continue.

In such case the original term coupled with the additional one is treated as one and the provisions of the statute of frauds satisfied by the writing originally signed by the parties.

Where, however, as here, the covenant be one "to renew" it contemplates the execution of a new lease upon the expiration of the original one and if the term of renewal be for a period exceeding one year a written lease is required to comply with the provisions of the statute of frauds.

When, as in the instant case, no written lease is entered into after the expiration of the first, the law makes a new lease for the parties, since they, themselves have failed to do so, in that it creates for them a tenancy from year to year referable to the former lease as respects the terms. City CoalCo. vs. Marcus, supra, p. 461, except as the parties by mutual agreement may modify such terms.

It must consequently be held that the defendant corporation has held occupancy of the premises following the expiration of the former written lease on November 14, 1933, for two successive terms of one year each, each of which constituted a distinct tenancy. Ordinarily the right to remove the fixtures where the lease is silent on the subject would terminate, if not exercised before, with the ending of the first term on November 14, 1933, and the right to remove them thereafter would not exist.

In the instant case, two tenancies have expired without the right of removal being exercised and equally without any agreement, so far as the evidence shows, by which the right of removal has been saved to the lessee.

Under all the circumstances there appears to be no reason for modifying the conclusion reached in Memorandum of November 7, 1935.