Gilfoyle v. Cahill

Bischoff, J. The action was for a month’s rent, from April 15, 1896, to May 15, 1896, at the rate of $45 per month to May 1st, and $55 per month to May 15th, in all $50, the claim of $47.50 having been explained to have been an error in computation. There was testimony for the defendants to the effect that in ¡November, 1895, the previous oral agreement hereinafter to be alluded to was modified by limiting the letting to May 1, 1896, at a rental payable monthly in advance, and at the rate of $45 per month. This was denied, however, by testimony for the plaintiff, and upon the conflict which thus ensued we must conclude, consistently with the judgment, which was for the full amount claimed, that the facts were determined adversely to the defendants. The facts which appeared from substantially unchallenged evidence upon the trial were, that some time in September, 1895, Albert I. Sire, the plaintiff’s assignor, and the defendants entered into an oral agreement, the former to let the store and a part of the basement of the premises, 189 West Tenth street, in the city of Hew York, for the term of five years and six and one-half months, commencing October 15, 1895, and the latter to pay monthly, in advance, a rental at the rate of $45 per month, until May 1, 1896, at the rate of $55 per month, until May 1, 1897, at the rate of $60 per month until May 1, 1901, the end of the term; that pending the execution of the agreement in writing, the defendants, with Sire’s consent, entered into possession of the premises on September 30, 1895, and so continued until April 30, 1896, on which [70] day they vacatpd and abandoned the same, having meanwhile paid the rent as orally agreed up to April 15, 18.96, and refused to execute the proposed written lease, when it was submitted to them for such purpose. Upon this state of the facts it was contended for the defendants that the lease for more than a year, not being, in writing, was void under the statute (11 R. S. [Banks & Bros.’ 9th ed.], p. 1885, § 9); that owing to the invalidity of such oral lease their possession of the premises was, at most, under aii agreement which did not “particularly specify” the duration of the right of possession; hence, that such last-mentioned agreement, being in respect to premises in the city of New York, expired on the 1st day of May next succeeding the day of their entry into possession (11 R. S. [Banks & Bros.’ 9th ed.], p. 1818, § 1), and that they were, if at all, liable only for the value of the use and occupation of the premises from April 15, 1896, to May 1, 1896, $22.50, which amount, with the costs of the action, was paid into court. The judgment in the plaintiff’s favor, for the full amount of - the month’s rent claimed, is in our opinion unassailable, the facts .being sufficient for the predication of a monthly letting at a rental payable in advance. A monthly letting being established disposes of so much of the defendants’ contention as was to the effect that the agreement expired on the 1st day of May next succeeding the day-of .their entry into possession, for, obviously, a letting for a month, or from month to month, particularly specifies the duration of the right of possession. Though an oral agreement of lease for more than a year is void in respect to its intended endurance, the provisions thereof are pertinent to the ascertainment of the terms of a lease for less than a year if an agreement to the last-mentioned effect is impliedly apparent, or inferable from the circumstances. Thus in Coudert v. Cohn, 118 N. Y. 309, possession and payment of rent for upwards of one year under an oral lease for a term of years, which provided for an annual rental payable in'monthly installments, and continuance in possession by the lessee for a part of the second year, was held to be evidence of a lease for such second year, or from year to year; and in Talamo v. Spitzmiller, 120 N. Y. 37, 41, where there was an oral agreement of lease for five years, at an annual rental, payable in monthly installments, in advance, the court said: “ The parol agreement for five years was not effectual to create a tenancy for one year. Hor did the [71] mere fact that the plaintiff went into possession have that effect. He remained in occupation a part of one year only and the creation of a tenancy for a year was dependent upon something further. While it is not required that a new contract be made in express terms, .there must be something from which it may be inferred, something which tends to show that it is within the intention of the parties. The payment and receipt of an installment or aliquot part of the annual rent is evidence of such an understanding, and goes in support of a yearly tenancy, and without explanation to the contrary it is controlling evidence for that purpose.” . Citing Reeder v. Sayre, 70 N. Y. 184, and Laughran v. Smith, 75 id. 209. The case at bar is squarely within the ruling of the Talamo case, and differs from the Coudert case only in respect to the duration of the implied lease. We have the facts of an oral understanding of the parties that the premises should be occupied by the defendants at a rental, commencing on the 15th day of the calendar month, at the rates hereinbefore mentioned, and payable monthly in advance, the entry and continuance of the defendants in possession of the premises for six months and a part of the month for which the rent sued for was claimed to be due, and the payment monthly in advance of the rent for each of such six prior months. The facts sustain a finding of a letting by the month, or from month to month (Geiger v. Braun, 6 Daly, 506); that is to say, from the 15th day of one calendar month to the 15th day of the next succeeding one, at a rental payable in advance. We must, in support of the judgment, assume that the court below so found. The continuance by the defendants in possession after the 15th of April, 1896, subjected them to liability for the rent for the month ending on the 15 th of May next following, the fact of such continued possession being evidence of a renewal of the term. Schuyler v. Smith, 51 N. Y. 309, 313; 12 Am. & Eng. Ency. of Law, § 4, and cases in note 4. Judgment affirmed, with costs. Daly, P. J., concurs.