Larsen v. City of New York

76 Misc. 569, 137 N.Y.S. 144

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1912
• Status: Published

Opinion

Per Guriam.

The question whether the city surrendered

the premises prior to October 1, 1906, was a question of fact. The plaintiff testified that the city continued in occupancy during the entire year from October 1, 1906, to October 1, 1907, and he was corroborated by Mr. Lucien Knapp, who was superintendent of the street cleaning department at the time: The premises in question were used as a corporation yard and were under the control of Mr. Knapp. The finding of the justice tha,t the city held over appears to have support in this testimony, and indeed the city’s testimony to show surrender is not at all definite or convincing. As to the claim of the -city that the plaintiff accepted surrender by leasing stalls in a building on part of the property to the American Express Company prior to October, 1906, the evidence does not. bear out this claim. It shows an immaterial change in the boundaries of the demised premises by which the city occupied a much larger area of vacant ground -—which was what was required for the purposes of a corporation yard — and the plaintiff used in exchange the part of the barn or building in which he leased the stalls. This was by arrangement with the city authorities, and was an immaterial and insignificant change. The reference to lot numbers on a map in this locality in Long Island City is not of great moment. At any rate, the city does not allege and has not proved an eviction. The city could not go on occupying the premises and refuse to pay rent because its possession of a portion thereof was interfered with. Vernon v. Smith, 15 N. Y. 327; Smith v. Barker, 112 App. Div. 187; Austin v. Strong, 47 N. Y. 680; Boreel v. Lawton, 90 id. 293.

The judgment should he affirmed, with costs.

Present: Kelly, Jaycox and Clark, JJ.

Judgment affirmed, with costs.