#### Frederick T. Mason, Appellant, *v.*Frederick Tietig, Respondent.

(City Court of New York, General Term,

April, 1898.)

1. Lease to a firm — Continued occupation by one partner does not renew the lease.

Where premises have been rented to a firm, occupation by a single partner, after the expiration of the original term, does not renew the lease nor constitute a holding over by him under it.

2. Lease for an indefinite term — Duration — Holding over.

A person thus in occupation of premises in the city of New York until some time „in June, under • an indefinite agreement as to the duration of 'this occupation, must, under 2 B¡. S., 9th ed., p. 1818, § 1, the special statute applicable to that city, be deemed entitled to a valid term until the first day of the ensuing May and where he remains in possession after that day, the yearly letting thus created continues for another year.

Appeal from a judgment entered upon a verdict in favor of defendant and from an order denying a motion for a new trial.

Charles T. Terry, for appellant.

James S. Lehmaier, for respondent.

O’Dwyer, J.

The possession by the defendant of No. 17 Wooster street, after February 1, 1896, was not taken under the original lease. It is true that when a tenant under a lease for a year holds over after the expiration of the year, he may at the election of the landlord be held as a tenant for another year, under the terms of the lease. But that is not this case.

The defendant was not the tenant under the original lease. That he was a member of the firm who were the tenante has no effect *444whatever. As he was not the tenant under the lease he could not he deemed to hold over under the lease. James v. Pope, 19 N. Y. 324; Buchanan v. Whitman, 151 id. 257.

. We must now consider the defendant’s liability, if any, by reason oí the transactions had which put him in possession of the premises No. 17 Wooster street. Prom a careful examination of 'the evidence it is clear that the renting of those premises was not from month to month, and there is no evidence to- support a finding that there was a lease from June 1, 1896, for one year.

The plaintiff testifies that nothing was said, with respect to the term that the defendant should have and in this statement he is supported by the .defendant who testifies that nothing was said about the term or amount of rental. It then appears from the defendant’s testimony that he took possession of-the premises some time in June, 1896. In view of the fact that the premises were not let for the definite term of one year it becomes necessary to consider the effect of the statute providing that “ Agreements for the occupation of land or tenements, in the city of New York, which shall not particularly specify the duration of such occupation, shall be deemed valid -until the first day of May next after the possession under such agreement shall commence,” 2 R, S. (9th jed.), 1818, § 1.

Prom the evidence it is clear that this hiring was governed by the statute and the time would continue until the 1st of May, following and the tenant having- remained in possession thereafter the yearly letting thus created would continue for another year. Douglass v. Seiferd, 18 Misc. Rep. 188.

It is contended by the respondent that from the cross-examina-/ tion of the plaintiff’s witness^ it appears that a specified yearly hiring was shown to take effect from the 1st of J une, .but the evidence fails to support any such claim. Both plaintiff and defendant have testified that nothing was said about the term.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Pitzsimons, Oh. J., and Cohiait, J., concur.

-- Judgment and order reversed and new trial ordered, with .costs-' to appellant to abide event.