Levine v. Sidney Rosenstein & Co.

Erlanger, J. For a separate defense to an action upon an agreement for surrender by the tenant of an unexpired term, not exceeding one year, under a lease of premises in the city of New York, the defendant alleges that the agreement was not in writing. The plaintiff demurs to this defense. A paroi agreement to surrender an unexpired term of a lease, where the interest of the tenant thus surrendered is not to exceed a year’s duration, is valid, although to take effect in futuro, under the provisions of the Statute of Frauds relating to the general subject of leases. Real Prop. Law, §§ 242, 259; Allen v. Devlin, 6 Bosw. 1, 7; affd., 23 N. Y. 363. It is contended by the defendant, however, that the agreement of surrender must be in writing, where it affects property in the city of New York, by virtue of section 232 of the Real Property Law, as amended in the year 1918, which reads “An agreement for the occupation of real estate in the city of New York, shall create a tenancy from month to month, unless the duration of the occupation [301] shall be specified in writing by the parties thereto or by their lawful agents.” This statute, in terms, applies to the creation of a tenancy, not to its surrender, but the defendant points to the legislative policy that a paroi surrender should be for a term no greater than may be created by paroi, a policy indicated by the conformity of the general-provisions of the Statute of Frauds with respect to the term which may be respectively created or surrendered without a writing. Real Prop. Law, §§ 242, 259. While the new statute certainly affects the creation of leases in this city, I find no ground for an implication that it relates to the subject of a surrender of a lease. It is no mere modification of the old Statute of Frauds; it provides a distinctly new rule, in that these leases in the city of New York must be signed by both parties, whereas the lessor only must subscribe, under the general requirements of the statute. It relates to one subject-—-the creation of a tenancy — and treats it as a subject for new regulation. I cannot imply a legislative intent to read this new rule into the different subject of a surrender of a lease. As was said by the court in Berkowitz v. Iorizzo, 106 Misc. Rep. 489, upon the construction of this statute: “ We think that the dissimilarity of the language employed in the act under discussion from that of the Statute of Frauds requires us to assume that in enacting the act in question, the legislature in no way modelled it after the Statute of Frauds; and it follows that our construction should be unaffected by the provisions or phraseology of the older statute.” The legislature has made a new Statute of Frauds for the city of New York, upon the subject of the creation of tenancies. Souhami v. Brownstone, 189 App. Div. 1. Whether the old policy of the .law on the [302] related matter of the surrender of tenancies is to be correspondingly changed, is a legislative question, not one for judicial determination. I conclude that the separate defense is insufficient in law, and that the plaintiff’s motion for judgment upon the demurrer should be granted, with ten dollars costs. Defendant’s motion denied, with ten dollars costs. Ordered accordingly.