#### The Trustees of the Leake and Watts Orphan House in the City of New York, a Corporation, *v.*Frank J. Hoyle, John L. Hayes, and Henry C. Merritt, as Commissioners Named and Appointed Pursuant to Chapter 361 of the Laws of the State of New York, Passed June 16, 1911, Etc.

(Supreme Court, Westchester Special Term,

February, 1913.)

Landlord and tenant—lease—'what constitutes a hold over by the tenant — provision in lease that it shall not be put in evidence does not oust court of right to consider competent evidence.

On January 1, 1910, a parcel of land was leased to the Bronx Valley sewer commission, created by chapter 361 of the Laws of 1911, for a year at a yearly rental, and on the same day another *302parcel was leased to the same tenant for six months at a monthly rental. All rent was payable quarterly and an option given to renew the lease of the first parcel for a term of from two to twelve months, and of the second for a term of from three to nine months. The tenant remained in possession of both parcels until the middle of April, 1911, at which time it removed its entire plant. In an action for rent, held:

That leaving odds and ends such as lumber, broken tools, etc., on the land did not constitute a hold over by the tenant beyond the time of the removal of its plant.

That by holding over under the lease of the second parcel, without stating which period it elected to renew for, it would be deemed to have held over for the shortest term; but as said lease provided that if renewed for less than six months the rent should be paid monthly during the renewal period the quarterly payment of such rent extended the renewal term to January 1, 1911, and by holding over after that date the lease was again extended to July I, 1911, and by holding over on the first parcel after January 1, 1911, and paying the rent quarterly, the lease on that parcel was also extended six months to July 1, 1911.

A provision in a lease, that it shall not be put in evidence in any action between the parties relating to the subject matter of the contract, does not oust the court of its right to consider competent evidence.

Action for rent

E. E. and A. J. Prime, for plaintiff.

Edgar 0. Beeeroft, for defendants.

Tompkins, J.

The defendants constitute the Bronx Valley sewer commission.

About January 1, 1910, the Bronx Valley sewer commission leased two parcels of land in the city of Yonkers, H. Y., from the plaintiff: the first parcel for the term of one year from that date, at a yearly rental of $960, payable quarterly, the second parcel for the term of six months at a monthly rental of $110, payable quarterly. As to the first parcel, there was a privilege for renewal of the lease for a period not less than two months and not more than twelve months, upon the commission giving twenty days’ notice of desire to renew, and stating the period for which the lease was to be renewed. *303There was a similar privilege of renewal of the lease on the second parcel, except that the renewal period was for from three to nine months.

The commission remained in possession of hoth parcels until the middle of April, 1911, at which time it removed its entire plant leaving only some lumber, broken tools, broken wheel-barrows, etc., scattered about and some spiles close to the edge of the Hudson river.

The leaving of these odds and ends on the land did not constitute a hold over by the commission beyond the term of the tenancy created by the presence of the commissioners’ plant on the land, which was until the middle of April, 1911. Gibbons v. Dayton, 4 Hun, 451; McCabe v. Evers, 9 N. *Y.*Supp. 541; Rorbach v. Crossett, 19 id. 450; Manley v. Clemmons, 14 id. 366.

As the commission had an option to extend or renew the lease on the second parcel a term of from three to nine months, from July 1, 1911, as it might elect, by holding over without stating which period it elected to renew the lease for, it will be deemed to have held over for the shortest period under that privilege, namely, three months. Falley v. Giles, 29 Ind. 114; Lanham v. McWilliams, 6 Ga. App. 85.

But the lease required that, if it were renewed for a term less than six months, the rent should be paid monthly during the renewed period, and not quarterly. So, the commission, by paying this rent quarterly, extended the term of its renewal of the lease to six months, to January 1, 1911. And by holding over after January 1, 1911, again extended the lease for another six months, to July 1, 1911.

So the commission, by holding over on the first parcel after January 1, 1911, and paying the rent quarterly and not monthly, similarly extended the lease on that parcel six months to July 1, 1911.

To establish the plaintiff’s case, the lease was offered in evidence, and was objected to on the ground that by its terms it was expressly made inadmissible. The lease contained the following provision: “And it is further covenanted and agreed between the parties that neither this instrument, nor *304the leasing of said rights hereby, nor any of the negotiations or agreements leading up to or concerning the same, nor the rental of said premises, nor the amount of such rental shall be used in evidence in any legal proceeding or action now pending between the parties hereto, or hereafter to be commenced between the parties for any purpose whatever.”

Decision upon this objection and the inadmissibility of the lease was reserved. I think the lease should be received in evidence, and I have, therefore, overruled the defendant’s objection. The court cannot permit itself to be ousted of the right to consider competent evidence by a provision in a contract that it shall not be put in evidence in any action between the parties relating to the subject matter of the contract.

The plaintiff is entitled to judgment for $570, with interest from July 1, 1911, with the costs of this action.

Bequests to find may be submitted within five days.

Judgment accordingly.