#### Alfred H. Thorp, Respondent, *against*John M. Philbin, Appellant.

(Decided February 4th, 1889).

In an action foment, it was admitted that a telegram stating the amount of rent which would be demanded on a reletting had been received by-defendant a short time after he had written a letter to plaintiff requesting the information which was conveyed by the telegram, and it appeared that the terms of the telegram were a few days afterwards reiterated in a letter from plaintiff to defendant. *Held,*that this was sufficient *prima facie*proof of genuineness of the telegram to render admissible secondary evidence of its contents.

A few days before the termination of defendant’s yearly lease of plaintiff’s premises, plaintiff, in response to a request for information as to the amount of rent asked, sent a telegram stating the amount. *Held,*that defendant’s continuance in occupation of the premises after the expiration of his term, without any reply to the telegram, by operation of law constituted a new contract for another year at the rent named in the telegram; and therefore, evidence of the acts of the parties subsequent to such date was inadmissible to indicate their intention, as nothing short of a new agreement could change the contract made by operation of law.

In an- action for rent against a tenant continuing in possession after a notice from the landlord of an increase of rent, damages caused by the landlord keeping up a sign on the premises, “ To Let,” are not the subject of a counterclaim.

Appeal from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered upon the verdict of a jury and an order denying a new trial.

The facts are stated in the opinion.

*R. Duncan*Harris, for appellant.

*H.*Morrison, for respondent.

Allen, J.

The action was for rent. The complaint alleged that the defendant, by an agreement in writing, hired *156the premises No. 1 East 17th Street, in the city of New York, from May 1st, 1886, for one year, at an annual rental of $1,800, and that thereafter, and on April 28th, 1887, the landlord duly notified the defendant that, if he continued in possession of said premises after the expiration of the term, to wit, the 1st day of May, 1887, the rent thereof would be $2,400 per annum, and that the defendant continued in possession ; and demanded judgment for $600, three months rent, and interest. The answer admits the leasing of the premises from May 1st, 1886, to May 1st, 1887, and denies the notice of increased rent, and sets up a counterclaim.

It is the established rule in this state that when a tenant holds over after the expiration of his term the law will imply an agreement to hold for a year upon the terms of the prior lease. This rule is too well settled to require the citation of authorities. In *Despard*v. *Wallbridge*(15 N. Y. 374), it was held that when the owner of property notifies the tenant before the expiration of his term that the rent will be increased to an amount named in the notice, and the tenant continues in occupation after the expiration of his term without any reply to the notice, there is in law a virtual assent to the terms prescribed in the notice, and an implied contract is entered into to pay the increased rent. The notice which the plaintiff claims was given to the defendant that the rent of the premises would be- increased is contained in the telegram received by Mr. Harris, the defendant’s agent.

The defendant contends that the court erred in admitting evidence as to this telegram and its contents, relying upon the case of *The Oregon Steamship Co.*v. *Otis*(100 N. Y. 453) where it is said that while the transcript of a telegram delivered to the person addressed is, for some purposes as between him and the sender, deemed the original, it can never be so without some proof that the despatch was sent or authorized to be sent by the alleged sender. As it is admitted that the telegram was received a short time after the defendant had written requesting the information which "was conveyed by the telegram, and the terms of the telegram were in a few days afterwards reiterated in a letter from the plaintiff to the *157defendant, we are of the opinion that a *prima facie*case was made of the genuineness of the despatch which justified its receipt in evidence.

If the telegram was properly admitted in evidence, as we think it was, then the continuance of the defendant in possession of the premises after the 1st day of May, 1887, without any reply to the notice, brings the case within the principle of *Despard*v. *Wallbridge*(above quoted).

The defendant sought to introduce in evidence conversations and acts of the parties and their agents which occurred subsequent to the 1st day of May, 1887, insisting that such evidence was material as indicating the intention of the parties, and excepted to the refusal of the court to admit such evidence. We think the court committed no error in this part of the case. The contract which was created by the acts of the parties was not one which required mutuality. It was an agreement which the law made for them. “ The law sometimes steps in and makes agreements for parties which they do not mutually intend ” *(Schuyler*v. *Smith,*51 N. Y. 309). Tire obligations of the parties were fixed upon the 1st day of May, after the expiration of the first lease ; and it was not in the power of either of them to throw off their duties under that contract, however onerous they might be. While it is true that they might have come together and, by mutual consent, have made a new contract, based upon proper consideration, there is no claim that any such agreement was made. Therefore, the testimony offered by the defendant as to the conversations and acts of the parties or their agents after the contract was complete, was properly excluded by the trial judge.

The answer sets up as a counterclaim that a sign of “ To Let” was put upon the premises on the 3rd of May, and allowed to remain until the 30th of September, to the great damage of the credit and business of the defendant, in the sum of $5,000. The court excluded evidence on behalf of the defendant as to the matter pleaded in the answer as a counterclaim, and properly held that this matter was not the subject of a counterclaim in this action. It is only necessary to say that; assuming the defendant has a cause of action by *158reason of the plaintiff’s act in affixing the sign to the premises, it does not arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, nor is it connected with the subject of the action, nor is it a cause of action on contract.

The judgment of the City Court should be affirmed, with costs.

Larremore, Ch. J., and Bookstaver, J., concurred.

Judgment affirmed, with costs.