#### Marie Spies, Respondent, *against*Philip Voss, Appellant.

(Decided April 7th, 1890.)

Defendant took possession of plaintiff’s premises under an oral understanding that if the premises were put in a certain order she would stay for a long time, the rent being payable monthly in advance. *Held,*under the statute relating to renting in New York City, that this created a tenancy until May 1st following.

A re-entry and re-letting by the landlord, after the premises are abandoned and the key returned by the tenant, do not, without further proof, establish a surrender and acceptance.

«■ Appeal from a judgment of this court entered upon a verdict directed by the court.

The facts are stated in the opinion.

*Felix Jellenik,*for appellant.

*Jacob*Fromme, for respondent.

J. F. Daly, J.

There was no written agreement for the occupation of the premises and no term agreed upon, and the question is whether the tenancy continuéd to May 1st, 1888, or was for a month or from month to month, and whether there was a surrender and acceptance of the lease.

The wife of the tenant made the agreement on his behalf; she said that if the rooms were painted and fixed up she would stay a long time, for five years or eight years. She was told that the rent was $58 a month payable monthly in advance. The painting was done, and the tenant moved in a few days after May 1st, 1887, paying rent from May 1st. A receipt was given for one month’s rent, for each month up to and including September 1st, 1887. The tenant moved out October 1st, 1887, returning the key of the premises, which was retained, the landlord endeavoring to re-let the premises.

This case seems to fall within the statute which provides that an agreement for the occupation of lands or tenements in *172the 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, and the rent under such agreement shall be payable at the usual quarter days for the payment of rent in the said city unless otherwise expressed in the agreement. Here the duration of the occupation was not particularly specified: it was evidently intended to be for longer than one month, and not to be for one month or from month to month, as defendant claims it was. In the case of *Wilson*v. *Taylor*(8 Daly 253), relied upon by defendant, there never was any agreement as to the terms of hiring, but the tenant had remained in possession six. years, paying a monthly rent of $7.50 in advance. It was said in that case that, in the absence of any agreement, valid or invalid, as to the duration of the term, or as to an annual rent, the rule seems to be that the intervals between the payments determine the length of the tenancy ; citing *Steffens*v. *Earl*(40 N. J. L. 137), where it was held that, where there is. no evidence but the mere fact of payment at intervals of a week or a month, the implication is that the renting is a monthly or a weekly one, just as the payment is monthly or weekly. In *People*v. *Botsford*(47 N. Y. 666), it was held that where the tenant is in possession-under a parol agreement void by the statute of frauds, and had occupied for a year, paying the rent monthly, a tenancy from month to month is created. If there had been in the case a specific agreement by parol for five years or for eight years which would be void under the statute of frauds, and the tenant went into possession, paying a monthly rent, a tenancy from month to month would have been created under the authority of the case last cited. If nothing had been said concerning the term, and the hiring had been at a certain monthly rent, a tenancy for a month only would have been created. But in the present case the parties contemplated a longer occupation than a month, as is apparent from the conversation between them ; but as their agreement did not ■“ particularly specify ” the duration of the term, the case is within the *173statute fixing the term as expiring on the first of May after entering upon possession. The fact that the rent was fixed at $58 a month and was payable monthly does not affect the question, as the statute includes cases where the" agreement provides how and when the rent shall be payable.

There was no surrender and acceptance of the lease. The tenant vacated the premises and offered the keys to the landlord, who refused to accept them, saying that the tenant had hired the premises for a year. The next day the keys were left in the landlord’s house, who afterwards entered the premises and endeavored to re-let, succeeding finally in doing so for the month.of April, 1888 (for which no rent is claimed). -Under the authority of our General Term in *Winant*v. *Hines*(14 Daly 187; 6 N. Y. St. Rep’r 261, 1887), re-entry and re-letting by the landlord after the premises are abandoned and the key returned by the tenant do not constitute a surrender and acceptance, without further proof. If this decision seems to be in conflict with the ease of *McKellar*v. *Sigler*in this court (47 How. Pr. 22, 1874), it may be noticed that in the latter case there was evidence that the landlord not only relet the premises but made alterations therein as well as repairs, acts taken together held to be inconsistent with the continuance of the tenancy.

The judgment should be affirmed, with costs.

Bisohofv, J., concurred.

Judgment affirmed, with costs.