#### BRENNAN v. CITY OF NEW YORK.

(Supreme Court, Appellate Division, Second Department.

February 11, 1903.)

1. Landlord and Tenant — Lease—Holding Over — What Constitutes.

A city leased a building for three years for the use of certain officers, who occupied it until about a month before the expiration of the lease, when, with the knowledge of the lessor, they vacated the building, except that they left therein two worthless stoves. During the tenancy, such officers, with the consent of the lessor, had placed a Yale lock on the door, and when they moved out they locked the door, and put the keys in the desk of the chief engineer. They were not discovered by the one who held the office when the lease expired until about six weeks after-wards, when they were tendered to the lessor. The building, as the lessor *248knew, was not occupied after such officers moved out. *Held*not to constitute a holding over by the city, so as to render it liable for rent beyond the term of the lease.

Appeal from municipal court, borough of the Bronx, First district.

Action by Michael Brennan against the city of New York. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

Samuel K. Probasco (James McKeen, on the brief), for appellant.

John R. Halsey, for respondent.

WILLARD BARTLETT, J.

In this action the plaintiff has recovered $120 as one-quarter’s rent from the ist day of January, 1902, for a building in the borough of the Bronx. The city had occupied this building under a written lease from the plaintiff for a term of three years, beginning on January 1, 1899. The complaint alleged that after January 1, 1902, the city continued and remained in possession and occupation of the said premises, thereby electing to continue its tenancy for another year; and the principal question presented by this appeal is whether the action of the city, through its representatives, at the conclusion of the term under the written lease and thereafter, can be construed into a holding over which binds the city for another year’s rent. The premises were occupied by the topographical bureau of the board of public improvements. The representatives of this bureau moved out some time in November, 1901. The fact of their removal was known to the plaintiff, who testified that he did not see anybody occupying the premises after that time. It appears that the agents of the bureau during the city’s occupancy put a new Yale lock on the door, which was left fastened on the occasion of their departure. They also put in two stoves, which had become worthless, and were left because they were no loiiger serviceable to the city. It further appears that the two keys to the lock which has been mentioned were handed to a Mr. Reis, the chief engineer of the bureau of public improvements, at the time when the building was vacated, and were by him placed in his desk, where they were not discovered by the gentleman who succeeded him in office at the end of the year 1901 until about the middle of February, 1902, when they were tendered to the plaintiff, who declined to receive them.

The alleged liability of the city is based upon two facts: (1) The ■ leaving of the useless stoves on the premises; and (2) the failure to turn over the keys to- the landlord before or upon the expiration of the term under the written lease. In my-opinion, under all the circumstances of the case, these facts do not justify the finding that there was such an occupation of the building by the city as to render it liable for further rent. In the case of Gibbons v. Dayton, 4 Hun, 451, a few valueless pieces of property were left in the rooms, and the court declared that: “Worthless fragments and articles, which tenants are often accustomed to leave behind them, have never been held to constitute a continuance of the tenancy. The landlord’s remedy, if any, for such an injury, is quite different from treating the-tenancy as renewed by the omission to carry everything away, whether valuable or *249not.” As to the keys, the case is analogous to Gray v. Bompas, n C. B. (N. S.) 520, where the mere accidental detention of the key by the tenant for two days beyond the expiration of the term was held not to be any evidence of such use and occupation as to render the tenant liable for another quarter. Here, it is true, the detention of the keys was much longer than in the case cited; but it is to be noted that the lock had been placed upon the premises by the city with the assent of the landlord; that he had personal knowledge that the city had vacated the premises in November; and that the retention of the keys by the city was due solely to the lack of information on the part of a new officer, who, as the evidence indicates, would have delivered them to the landlord at once if he had known or been informed that they were in his custody. The detention of the keys was just as accidental as it was in Gray v. Bompas, supra, and the fact that it was longer in duration does not, under the proof in the present case, make it any more significant of an intention on the part of the landlord to continue the occupancy of the premises. I think the judgment should be reversed.

Judgment of the municipal court reversed, and new trial ordered; costs to abide the event. All concur.