Schnee v. Jonas Equities, Inc.

• Decision Date: 21 March 1980
• Citation: 103 Misc.2d 625,426 N.Y.S.2d 431
• Parties: Helen SCHNEE, as Administratrix of the Estate of Frieda Bronitz, Plaintiff, v. JONAS EQUITIES, INC., Defendant.
• Court: New York City Court

Page 431

426 N.Y.S.2d 431

103 Misc.2d 625

Helen SCHNEE, as Administratrix of the Estate of Frieda

Bronitz, Plaintiff, v. JONAS EQUITIES, INC., Defendant.

Civil Court of the City of New York, Kings County, Part 28.

March 21, 1980.

Helen Schnee, pro se.

Jonas Equities, Inc., pro se.

LORRAINE S. MILLER, Judge.

Plato inquired "Must not all things at the last be swallowed up in death?" The defendant-landlord herein contended at trial that one relationship is eternal, sacrosanct and inescapable . . . a lease with one's landlord!

The daughter-administratrix of deceased tenant sued herein to recover two months security, $424.53, from her mother's landlord. Death had occurred March 17, 1978; contents of apartment were removed and keys surrendered and accepted March 28, 1978; reletting occurred April 3, 1978 at an increased rental of $15 per month, commencing May 1, 1978, over the rental in deceased's unexpired lease which still had 13 months to run. Defendant has retained all of the security except $27.22 which the administratrix refused to accept.

The issue before this court (which seems to have escaped previous judicial scrutiny) is whether a vacancy resulting from a tenant's death, as distinguished from a volitional abandonment, effects a cancellation of the lease by operation of law, particularly where, as here, the keys and possession were promptly surrendered and accepted, and rerental occurred at a higher sum almost immediately.

A surrender by operation of law will normally relieve a tenant of any subsequently accruing rents after the effective date of surrender. Gray v. Kaufman Dairy, 162 N.Y. 388, 56 N.E. 903. An effective surrender is usually accomplished by an agreement of the parties or by an unequivocal act evidencing that they consider a surrender has been made. Dagett v. Champney, 122 A.D. 254, 106 N.Y.S. 892; New Amsterdam Casualty Co. v. Natl. Union Fire Ins. Co., 151 Misc. 894, 273 N.Y.S. 647, aff'd 241 A.D. 813, 271 N.Y.S. 953, aff'd 266 N.Y. 254, 194 N.E. 745. The return of the keys by the tenant is not sufficient by itself and must be accompanied by an act of acceptance such as a resumption of possession for the landlord's benefit. Gadak Inc. v. FWB Corp., 26 A.D.2d 807, 273 N.Y.S.2d 825; David Present Co. Inc. v. Tamasauskas, 210 A.D. 786, 206 N.Y.S. 594; Creighton v. Winfree, Sup., 187 N.Y.S. 72; 2 RASCH, N.Y. Law of Landlord & Tenant, Secs. 869, 870. The facts herein indicate a surrender and a cancellation of the relationship by operation of law as well as the creation of a new estate which benefitted the defendant.

The court is aware that the lease of the deceased contained a re-rental provision (par. 12) permitting the landlord to re-enter and relet the premises as the agent of the tenant in the event of a vacancy or the tenant's dispossession, with the tenant remaining liable for rent and reletting costs. Since death of a principal terminates a previously created agency, an agency cannot spring into being after the death of the ostensible principal. Weber v. Bridgman, 113 N.Y. 600, 21 N.E. 985; Farmer's Loan v. Wilson, 64 Hun. 194, 19 N.Y.S. 142.

Accordingly, the court rejects defendant's allegation that it was acting as agent for deceased when it rerented the apartment.

Defendant similarly contends that the common law rule is that landlord has no duty to relet abandoned premises to minimize the former tenant's damages. While that appears to have been the law from hoary days of yore, Becar v. Flues, 64 N.Y. 518, we have recently seen some enlightened and more equitable judicial commentary on that issue. Lefrak v....