Krumdieck v. Ebbs

PER CURIAM.

This action was brought to recover for rent of a store for the month of February, 1903, under a verbal lease from month to month. Defendant pleaded a surrender and acceptance. Plaintiffs had a judgment, and the defendant appeals.

The proof on the part of the defendant clearly establishes the following facts: The defendant removed all his property from the premises in-January, and surrendered the keys to the plaintiffs’ janitor, who gave them to the plaintiffs about February 3, 1903. Prior to February 1st plaintiffs had put a notice “To Let” in the store window. They entered into negotiations with other parties for the leasing of the premises, and allowed those parties to enter upon the premises upon February 15, 1903, although the lessees were not to begin payment of rent until March 1, 1903. Under this state of facts, we think the defendant made out a clear case of surrender and acceptance, and plaintiffs cannot recover. Sherman v. Engel, 18 Misc. Rep. 484, 41 N. Y. Supp. 959.

Judgment reversed. New trial ordered, with costs to the appellant to abide the event.