#### Sigmund Singer, Appellant, *v.*James F. Smith and Edgar M. Smith, Respondents.

(Supreme Court, Appellate Term,

January, 1912.)

Landlord and tenant — Tenancies from year to year and month to month — Lease.

Where, prior to the execution of a written lease for a year at an annual- rent of $600, payable in monthly installments, the last of a series of lik§ leases extending over, a period of ‘twenty years, the tenant's write the landlord that if agreeable to him they will continue using the demised premises “ and pay you $50 per month therefor, which is the same amount we are now paying” and the landlord accepts the conditions, the new, contract'will.not be construed as changing, the character of the tenancy from a yearly to a monthly hiring.

*123Appeal by the plaintiff from a judgment of the Municipal Court of the city of blew York, borough of Manhattan, seventh district, rendered in favor of the defendants after a trial by the court without á jury.

Eosenthal & Steckler, for appellant.

Abraham B. Keve, for respondents.

Page, J.

This is an action to recover rent for the months of February and March, 1911, for a portion of the premises, 334 Broadway. The defendants had been in possession of that portion of the premises for about twenty years as yearly tenants. A written lease was executed April 5, 1909, for one year from May 1, 1909, at the yearly rental.of $600 to be-paid in equal monthly payments. Prior thereto the rent had been at the rate of $500 per year. So much is admitted by both sides. Treating the controverted facts as settled in the defendants’ favor by the decision of the court, it appears that, on April 29, 1910, the defendants wrote and caused to be delivered to the plaintiff the following letter:

“ Mb. S. -Singee,

“ 334 Broadway,

“ Few York-City:

“ Deab Sib.-—■ Our lease with you for the rear of the store Fo. 334 Broadway expires May 1st, 1910, and if it is agreeable to you we will continue using that office and pay you $50. per month therefor, which is the same amount we are now paying-.

*“*Thanking you in advance for letting us know promptly whether this is satisfactory, we are,

“ Yours truly,”

Upon the receipt of this letter, plaintiff said to one of the defendants, “ I accept the conditions of this.” The defendants remained in possession until January 6, 1911, when they removed from the premises, having paid the rent until *124February 1, 1911. Defendants contend that by reason of this agreement the character of their tenancy was changed from a yearly to a monthly hiring. Plaintiff’s contention is' that this letter was only an agreement to continue the lease at the rent of “ $50. per month,” which was the amount they were paying then, and did not refer to the term of hiring, and the specification of the amount was prompted by the fact that the rent had been raised the previous year; while defendants claim that “ $50 per month” expresses not alone the rent but the term. Certainly it cannot be said that the construction that plaintiff puts upon this letter is not a possible one; and, that being the case, it must be adopted, for it is elementary that of two possible constructions, that one will be adopted which is most-unfavorable to the person using the language construed. The learned counsel for the defendants states in Ms brief that it is clear “ that respondents really intended to change the nature of the tenancy and remain in the premises as monthly tenants,” but that is not the test. Did they communicate that intention so clearly that the landlord understood it and acted - upon that understanding ? There must have been a meeting of the minds; and, if the tenant expressed the intention in his mind so blindly that the landlord understood somethiug^ffferent and acted upon that understanding, there would be no agreement reached that would bind the landlord. The defendants’ counsel further says: “ It can well be conceded that the letter might have been clothed in more explicit terms.” It not only *“*might,” but, if it was expected thereby to change the relations that had existed for twenty years between the parties, it should.'

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

Seabury and Lehman, JJ., concur.

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