Bleistift v. Diener

Appellate Terms of the Supreme Court of New York

Bleistift v. Diener

129 N.Y.S. 73

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 4, 1911

StatusPublished

Cited by1 cases

This text of 129 N.Y.S. 73 (Bleistift v. Diener) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bleistift v. Diener, 129 N.Y.S. 73 (N.Y. Ct. App. 1911).

Pincite

Opinion

LEHMAN, J.

[1] Plaintiff has recovered a judgment for rent for the month of May of premises occupied by the defendants. It appears from the plaintiff’s testimony that the defendants occupied the premises under a written lease, which expired on May 1st. Thereafter they held over, and used and occupied the premises until about the middle of the month. About May 18th the plaintiff sent a man to defendants’ new place of business to demand the keys, and the defendants delivered up the keys.

“The law is well settled that, when a tenant under a demise for a year or more holds over after the end of his term without any new agreement with the landlord, he may be treated as a tenant from year to year, and in all other respects as holding upon the terms of the original lease. The landlord has an election to treat him either as a trespasser or as a tenant, and it is for the former to determine how he will treat him. * * * But such holding over puts the landlord to Ms election. He must either accept' the tenant as a tenant for a new term, or treat him as a trespasser. He cannot do both.” Goldberg v. Mittler, 23 Misc. Rep. 116, 50 N. Y. Supp. 733.

[2] In this case it seems to me that when the plaintiff demanded the keys, and received and retained them, he made a conclusive election not to treat the defendants as tenants under an implied lease for a year. At most he is entitled to recover for use and occupation, but he cannot claim that the relation of landlord and tenant continued after May 1st.

Judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.

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LEHMAN, J.

[1] Plaintiff has recovered a judgment for rent for the month of May of premises occupied by the defendants. It appears from the plaintiff’s testimony that the defendants occupied the premises under a written lease, which expired on May 1st. Thereafter they held over, and used and occupied the premises until about the middle of the month. About May 18th the plaintiff sent a man to defendants’ new place of business to demand the keys, and the defendants delivered up the keys.

“The law is well settled that, when a tenant under a demise for a year or more holds over after the end of his term without any new agreement with the landlord, he may be treated as a tenant from year to year, and in all other respects as holding upon the terms of the original lease. The landlord has an election to treat him either as a trespasser or as a tenant, and it is for the former to determine how he will treat him. * * * But such holding over puts the landlord to Ms election. He must either accept' the tenant as a tenant for a new term, or treat him as a trespasser. He cannot do both.” Goldberg v. Mittler, 23 Misc. Rep. 116, 50 N. Y. Supp. 733.

[2] In this case it seems to me that when the plaintiff demanded the keys, and received and retained them, he made a conclusive election not to treat the defendants as tenants under an implied lease for a year. At most he is entitled to recover for use and occupation, but he cannot claim that the relation of landlord and tenant continued after May 1st.

Judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.

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Bluebook (online)

129 N.Y.S. 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bleistift-v-diener-nyappterm-1911.

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