#### Milton E. Hammond, Respondent, *against*Martin Eckhardt *et al.,*Appellants.

(Decided April 7th, 1890.)

In an action to recover the rent of premises on an alleged holding over under a year’s lease, which expired May 1st, 1889, there was evidence that all defendants’ machinery was taken out of the premises before such date, and that April 30th and May 1st were legal holidays, and that, on May 2nd, by reason of a civic procession in the street, defendants were not able to cross it with their trucks, but that at such time there were only some broken boards on the premises. *Held,*that the question of a holding over should have been submitted to the jury, and that it was error to direct a verdict for plaintiff.

Appeal from a judgment of the District Court in the City of New York for the Third Judicial District, entered upon a verdict directed by the court.

The facts are stated in the opinion.

*A. JR. JKling,*for appellants.

*G. It. Carrington,*for respondent.

Larremore, Ch. J.

This was an action brought by the plaintiff to recover rent for the month of July, 1889, for premises Nos. 148 and 150 Bank Street in the City of New York. The evidence shows that the defendants entered the premises in the year 1888 under a written lease which expired *114May 1st, 1889, at an annual rent of $1,800. The plaintiff seeks to recover rent for the year commencing the 1st of May, 1889, on the ground that there was a holding over which made defendants liable for the rent since the 1st of May. The answer was a general denial. Upon the trial judgment was directed for the plaintiff for the July rent.

The main question in dispute was as to the surrender and acceptance of the premises. This question was one of fact and should have been submitted to the jury. It is shown by defendants’ testimony that all machinery had been taken from the premises before the 1st of May, 1889, and that the 30th of April and the 1st of May were legal holidays, and that on the 2nd of May by reason of the civic procession they were unable to cross Broadway with their trucks, but that at that time there only remained some broken boards upon the premises in question. The following questions were put to the landlord : “ Q. Did you not know that they moved out all the machinery they had in your building, in the month of April? A..No. Q. Did you not see them moving it out of your building in April? A. I think they did.” The tenant after the termination of the lease had still the right to enter upon the premises within a reasonable time for the purpose of removing his 'goods and utensils, which he may do if he does not exclude the landlord. The judge admitted evidence to show that after the 1st of May the engineer of the building had a conversation with one of the defendants’ employes in reference to furnishing steam, but it does not appear that such employe had authority to bind the defendants or that they ratified his action. Whether or not there was a holding over was clearly a question for the jury upon the evidence, and it was error to order judgment for the plaintiff.

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

Bischoee, J., concurred.

Judgment reversed and new trial ordered, with costs to abide event.