Underhill v. Collins
| Decision Date | 22 March 1892 |
| Citation | 132 N.Y. 269,30 N.E. 576 |
| Parties | UNDERHILL, v. COLLINS. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, second department.
Action by Jeronemus S. Underhill against Samuel Collins. From a judgment of the general term affirming a judgment for plaintiff entered on a verdict defendant appeals. Affirmed.
FOLLETT, C. J., dissenting. 10 N. Y. Supp. 680, affirmed.
P. Q. Eckerson, for appellant.
Charles M. Demond, for respondent.
This action was brought to recover rent. On September 30, 1886, the plaintiff leased to the defendant a room in the building known as No. 50 Broad street, in the city of New York, for the term of three years and seven months. The defendant entered into possession of the premises under the lease, and occupied them until the latter part of May, 1888, at which time he vacated them and went away. After leaving the premises he sent the keys, by another person, to the plaintiff. The keys were tendered to the plaintiff, but he refused to receive them, and they were left upon his desk. The plaintiff testified to a conversation with the defendant which occurred before he left the premises, in which the defendant asked him to take the premises off from his hands; that the plaintiff refused to do so, and told him that he should hold him for the rent, but would lease the premises for his benefit. After the defendant left the premises the plaintiff went and examined the same, and found the doors unlocked. He then returned to his office, took the keys from the desk, locked up the premises, and subsequently rented them to another person. The defendant had paid the rent up to June 1st, and this action was brought for that which subsequently accrued. The recovery was for the rent accrued, less the amount received from the new tenant. The defendant claimed that there was a room in the building in which gambling was carried on, and that in consequence there was a breach of the covenant of quiet enjoyment on the part of the plaintiff. But upon this issue the evidence was not sufficient to establish such breach, and the trial court so instructed the jury, and no exception was taken thereto. Upon the trial, and after the plaintiff had rested, the defendant moved to dismiss the complaint on the ground that the plaintiff had accepted a surrender of the premises by leasing them to another party. This motion was denied, and an exception taken. The acceptance by the landlord of the surrender of leased premises would prevent the recovery of rent not already due, and if the landlord takes possession of such premises so surrendered, and relets them to other parties, he will be deemed to have accepted a surrender, unless there are facts rebutting this inference. We must therefore refer to the evidence for the purpose of determining whether the plaintiff intended to accept a surrender. As we have seen, he refused to accept a surrender of the premises at the interview he had with the defendant....
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...the premises and reletting for the tenant's benefit, in which case the tenant remains liable for any rent deficiency. Underhill v. Collins, 132 N.Y. 269, 30 N.E. 576 (1892). The lessor also has the option to accept the repudiation, re-enter the premises and re-let for its own benefit. In th......
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Bilbrey v. Worley
...of abandoned premises by the landlord without the consent of the tenant would create a surrender by operation of law. Underhill v. Collins, 132 N.Y. 269, 271, 30 N.E. 576; Gray v. Kaufman, 162 N.Y. 388, 56 N.E. 903, 49 L.R.A. 580, 76 Am.St.Rep. 327; Day v. Watson, 8 Mich. 535; Rice v. Dudle......
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...211; Zucker v. Dehm, 128 N.J.L. 435, 26 A.2d 564; Sancourt Realty Corp. v. Dowling, 220 App.Div. 660, 222 N.Y.S. 288; Underhill v. Collins, 132 N.Y. 268, 30 N.E. 576; White v. Smith, 8 Ohio App. 368; Rucker v. Mason, 61 Okl. 270, 161 P. 195; Higgins v. Street, 19 Okl. 45, 92 P. 153, 13 L.R.......
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