Haight, J.
This action was brought to recover a quarter’s rent of premises, numbers 311 to 319 West Forty-third street in the city of Hew York, alleged to be due and owing from the defendants to th.e plaintiff.
It appears that the plaintiff and defendant Warren M. Healey are the tenants in common and owners of the premises, the plaintiff owning an undivided three-fourths and the defendant Healey an undivided one-fourth. The defendants were general partners and one William Williams was a special partner, constituting the firm of Healey & Co. On the 30th
day of May, 1891, the defendants leased the premises from the plaintiff and Healey for the term of one year from the first day of May, 1891, at the yearly rent of §8,500, payable quarterly, with the privilege to the defendants of continuing the lease for two years more upon giving notice in writing to each of the owners on or before the first day of February, 1892, and not otherwise. The lease was in writing and was signed by the defendant Healey and Healey
&
Co., but was not signed by the plaintiff. The notice to renew the lease was not given, and the defendants continued to occupy the premises for a few weeks after the expiration of the year.
This action is prosecuted upon the theory that the holding over by Healey
&
Co., after the expiration of the term of the lease, created a liability to pay the rent for another year, under the rule that where tenants hold over after the expiration of the term the law will imply an agreement to hold for a year upon the terms of the prior lease, if the landlord elects to so regard it.
(Haynes
v.
Aldrich,
133 N. Y. 287, 289.)
The defendants, in their answer, admitted that after the first day of May, 1892, they continued and remained in the occupation and possession of the premises, but they denied that they thereby elected to continue their tenancy for another year and allege that prior to the first day of May, 1892, they notified in writing Valentine and Healey, the owners, that they elected to discontinue their tenancy on the expiration of the term and declined to renew the lease and that they remained in the occupation of the premises under a new and an express agreement entered into with "W arren M. Healey, one of the owners. Upon the trial, the defendants offered in evidence two letters hearing date April 29, 1892, the day before the lease terminated, which are as follows:
“ Warren M. Healey, Esq., 1478 Broadway:
“Dear Sir.—-We desire to inform you that, as indicated by our failure to exercise the option expressed in your lease to us for the past year and as verbally stated to you yesterday by our representative, Mr. Thorne, that we shall not renew said lease. We understand that the premises have not been
rented for the corning year and shall be pleased to continue to occupy the same for a few weeks from the first of May next • in order to suit our convenience in moving, paying
pro rata rent for
such use and occupation.
“ Very
truly yours,
“(Signed) HEALEY & CO.”
“Hew York, 29
April,
1892.
“Messrs. Healey & Co., 1478 Broadway:
“ Gentlemen.—Your letter
of even
date to hand. You are at liberty to continue to occupy the premises Humbers 313 to 319 West 43d street at a
pro rata
rent for the period of such occupancy. This privilege is accorded you only with the understanding and agreement that such occupancy is to be terminated on a week’s notice from either party in order that we may take advantage of any opportunity that may offer to rent the premises for another year.
“ Very truly,
“(Signed) WABREH M. HEALEY.”
Healey testified that the first of these letters was received by him from Healey & ■ Co., and identifies the second letter as written by himself and delivered to Healey & Co. The letters were excluded by the trial court and an exception was taken by the defendants. After the plaintiff rested the defendants moved for a dismissal of the complaint upon the ground that the defendant Healey, being an owner in. fee of one-fourth of the premises, had a legal right at any and all times to occupy each and every part of the common property, and that his exercise of that legal right, in the absence of any evidence tending to show infringement of the rights of his co-tenants or a legal ouster, could not raise against him by a presumption of law any liability. .This motion was denied and an exception was taken. Upon the conclusion of the evidence the court directed the jury to render a verdict in favor of the plaintiff for the amount claimed by him. To this direction an exception was also taken by the defendants.
In the case of
McKay v. Mumford
(10 Wend. 351)
Nelson, J., in delivering the opinion of the court, says: “ As to a tenant who has no title, except by the lease under which he enters, if he continues after its expiration, his possession in contemplation of law, is in subordination to the landlord’s rights, because the law will not presume him disloyal. But no such presumption exists against the tenant in common. The ■fact of his not leaving possession does not authorize the inference that he still intends to hold under the lease; on the contrary, the presumption is that he holds under his own title, which gives him a right to the possession and enjoyment of the whole estate, liable, however, to account to his co-tenant at law.” This rule was recognized by the General Term in this case. (86 Hun, 259.) But that court distinguished that case from this. Healey is not the sole lessee. The lease ran to a firm of which he was a member. -In this respect the cases are distinguishable, but we fail to see why Healey, at the termination of the lease, may not assume his authority over the premises as an owner and a tenant in. common. As such tenant in common he had the right to take and occupy the whole of the premises and preserve them from waste or injury so long as he did not interfere with the right of his co-tenant to also occupy the premises. Had the letter of Healey & Company of April 29, 1892, been received in evidence, it would have shown conclusively that the company did not intend to hold over and renew the lease, but that they sought permission to remain in the premises for a short time to suit their convenience in moving; and if the letter of Healey of the same date had been received in evidence it would have shown that he not only gave his consent to the company to hold over, but that he assumed his relation to the premises as owner. It would also have explained the admission in the answer that the firm continued in possession after the expiration of the lease and established the facts that justified such action on the part of the tenants.
There is another view of the case which we think may properly be adopted. It may be, and doubtless is the law that a tenant in common cannot bind a co-tenant without his
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Haight, J.
This action was brought to recover a quarter’s rent of premises, numbers 311 to 319 West Forty-third street in the city of Hew York, alleged to be due and owing from the defendants to th.e plaintiff.
It appears that the plaintiff and defendant Warren M. Healey are the tenants in common and owners of the premises, the plaintiff owning an undivided three-fourths and the defendant Healey an undivided one-fourth. The defendants were general partners and one William Williams was a special partner, constituting the firm of Healey & Co. On the 30th
day of May, 1891, the defendants leased the premises from the plaintiff and Healey for the term of one year from the first day of May, 1891, at the yearly rent of §8,500, payable quarterly, with the privilege to the defendants of continuing the lease for two years more upon giving notice in writing to each of the owners on or before the first day of February, 1892, and not otherwise. The lease was in writing and was signed by the defendant Healey and Healey
&
Co., but was not signed by the plaintiff. The notice to renew the lease was not given, and the defendants continued to occupy the premises for a few weeks after the expiration of the year.
This action is prosecuted upon the theory that the holding over by Healey
&
Co., after the expiration of the term of the lease, created a liability to pay the rent for another year, under the rule that where tenants hold over after the expiration of the term the law will imply an agreement to hold for a year upon the terms of the prior lease, if the landlord elects to so regard it.
(Haynes
v.
Aldrich,
133 N. Y. 287, 289.)
The defendants, in their answer, admitted that after the first day of May, 1892, they continued and remained in the occupation and possession of the premises, but they denied that they thereby elected to continue their tenancy for another year and allege that prior to the first day of May, 1892, they notified in writing Valentine and Healey, the owners, that they elected to discontinue their tenancy on the expiration of the term and declined to renew the lease and that they remained in the occupation of the premises under a new and an express agreement entered into with "W arren M. Healey, one of the owners. Upon the trial, the defendants offered in evidence two letters hearing date April 29, 1892, the day before the lease terminated, which are as follows:
“ Warren M. Healey, Esq., 1478 Broadway:
“Dear Sir.—-We desire to inform you that, as indicated by our failure to exercise the option expressed in your lease to us for the past year and as verbally stated to you yesterday by our representative, Mr. Thorne, that we shall not renew said lease. We understand that the premises have not been
rented for the corning year and shall be pleased to continue to occupy the same for a few weeks from the first of May next • in order to suit our convenience in moving, paying
pro rata rent for
such use and occupation.
“ Very
truly yours,
“(Signed) HEALEY & CO.”
“Hew York, 29
April,
1892.
“Messrs. Healey & Co., 1478 Broadway:
“ Gentlemen.—Your letter
of even
date to hand. You are at liberty to continue to occupy the premises Humbers 313 to 319 West 43d street at a
pro rata
rent for the period of such occupancy. This privilege is accorded you only with the understanding and agreement that such occupancy is to be terminated on a week’s notice from either party in order that we may take advantage of any opportunity that may offer to rent the premises for another year.
“ Very truly,
“(Signed) WABREH M. HEALEY.”
Healey testified that the first of these letters was received by him from Healey & ■ Co., and identifies the second letter as written by himself and delivered to Healey & Co. The letters were excluded by the trial court and an exception was taken by the defendants. After the plaintiff rested the defendants moved for a dismissal of the complaint upon the ground that the defendant Healey, being an owner in. fee of one-fourth of the premises, had a legal right at any and all times to occupy each and every part of the common property, and that his exercise of that legal right, in the absence of any evidence tending to show infringement of the rights of his co-tenants or a legal ouster, could not raise against him by a presumption of law any liability. .This motion was denied and an exception was taken. Upon the conclusion of the evidence the court directed the jury to render a verdict in favor of the plaintiff for the amount claimed by him. To this direction an exception was also taken by the defendants.
In the case of
McKay v. Mumford
(10 Wend. 351)
Nelson, J., in delivering the opinion of the court, says: “ As to a tenant who has no title, except by the lease under which he enters, if he continues after its expiration, his possession in contemplation of law, is in subordination to the landlord’s rights, because the law will not presume him disloyal. But no such presumption exists against the tenant in common. The ■fact of his not leaving possession does not authorize the inference that he still intends to hold under the lease; on the contrary, the presumption is that he holds under his own title, which gives him a right to the possession and enjoyment of the whole estate, liable, however, to account to his co-tenant at law.” This rule was recognized by the General Term in this case. (86 Hun, 259.) But that court distinguished that case from this. Healey is not the sole lessee. The lease ran to a firm of which he was a member. -In this respect the cases are distinguishable, but we fail to see why Healey, at the termination of the lease, may not assume his authority over the premises as an owner and a tenant in. common. As such tenant in common he had the right to take and occupy the whole of the premises and preserve them from waste or injury so long as he did not interfere with the right of his co-tenant to also occupy the premises. Had the letter of Healey & Company of April 29, 1892, been received in evidence, it would have shown conclusively that the company did not intend to hold over and renew the lease, but that they sought permission to remain in the premises for a short time to suit their convenience in moving; and if the letter of Healey of the same date had been received in evidence it would have shown that he not only gave his consent to the company to hold over, but that he assumed his relation to the premises as owner. It would also have explained the admission in the answer that the firm continued in possession after the expiration of the lease and established the facts that justified such action on the part of the tenants.
There is another view of the case which we think may properly be adopted. It may be, and doubtless is the law that a tenant in common cannot bind a co-tenant without his
consent by a contract or a lease with reference to- the property of which they are the owners; but in this case, as we have seen, the lease was executed by Healey and was not executed by the plaintiff, but for a whole year the plaintiff accepted the rent and acquiesced in the lease made, and by the bringing of this action has adopted it as his lease, basing his right to recover of the defendants upon it, on the ground that they are presumed to have taken the premises for another year upon the same terms and conditions expressed in the lease. It appears to us that the plaintiff by thus adopting the lease has recognized the authority of *Healey to make it in his behalf. It ran for one year with the privilege of two years at the option of the defendants, and, under the circumstances, the other members of the firm had the right to assume that Healey had the authority to treat with them with reference to the leasehold premises. Under this view the letters excluded were proper evidence in the case. Had they been received they would have shown that the retention of the premises by the defendants was under a permit given by one of the owners, whose authority to act for the other owner they had the right to assume by reason of his adoption of the lease under which they had previously occupied the premises.
The judgment should be reversed and a new trial granted, with costs to abide the event.