#### Mary B. Lewis, Appellant, *v.*Charles Angermiller, Respondents

*Surrender of a lease*— when *effected by operation of law.*

The surrender of a lease is effected by act or operation of law when the parties, ' without any express surrender, do some act so inconsistent with the subsisting relation of landlord and tenant as to imply that they have both agreed to consider the surrender as made.

Facts considered from which such an implication arises.

Appeal by tbe plaintiff, Mary B. Lewis, from a final order in summary proceedings made by tlie special county judge of Orange county, and entered 'in tlie office of tlie clerk of tlie county of Orange on tlie 17th day of April 1895, upon the decision of tbe court rendered after a trial at tbe Orange County Court, dismissing tbe petition of tbe plaintiff.

*George*W. *McElroy,*for the appellant.

*John J.*Beattie, for the respondent.

Brown, P. J.:

This proceeding was instituted to remove the defendant from tbe possession of real estate for non-payment of rent. It appeared that on April 1, 1892, one Robert B.. Yan Yleck leased certain real estate in tbe town of Warwick to tbe defendant for tlie term of three years terminating on April 1, 1895. That tbe rent reserved was twenty-five per cent of tbe gross receipts of the business to be carried on upon tbe property, to be paid weekly. Provision was made in the lease for the employment of a cashier and the ascertainment and determination of tbe weekly receipts.

On August 29, 1892,. Yan Yleck -and defendant entered into a contract for tbe sale and purchase of tlie demised property. Tbe purchase price was $8,000, $500 of which was paid upon the execution of tbe contract; $2,000 of tlie balance was to be paid in cash, and for tbe remainder the defendant was to give his bond secured-by a mortgage upon the property, and upon receiving payment in such manner, Yan Yleck agreed to execute and deliver to the defendant a warranty deed for tlie property free from all incum-brances. About December 12, 1892, tlie defendant refused to take *66the title on account of an incumbrance on the property, but.lie testified upon the trial that he was ready to pay the purchase price when the title was perfected. *'*

On April 30, 1894, Yan Yleck conveyed the land to the plaintiff, and on May 8, 1894, assigned to her the lease. Thereafter the plaintiff demanded of the defendant that he comply with the terms of said lease and pay to her one-quarter of the weekly gross receipts, .and in November, 1894, no rent having been paid, she commenced .this jrroceeding.

Upon the trial the defendant and his wife testified without contradiction that, at the time of the execution of the contract of sale, it was agreed with Yan Yleck that after September first the defendant was not to pay rent under the lease. <

The special county judge correctly decided that the lease was surrendered and that- the relation of landlord and tenant did not exist between the parties. A surrender exists by act or operation of law when the parties, without any express surrender, do some act so inconsistent with the subsisting relation of landlord and tenant as to imply that they have both agreed to consider the surrender as made. Such an implication arises from the facts of this case. The relation of vendor and vendee was created, and there was a payment to the vendor of a part of the purchase money, and an agreement on his part to execute and deliver a warranty deed on receipt of the balance. And what is conclusive to my mind, as to the intent of the parties in relation to the lease, is that after the execution of the contract of sale there was no payment of rent by the defendant and no demand therefor by Yan Yleck. The omission to make any demand or request of the weekly payments of rent for a period of upwards of eighteen months shows conclusively that Yan Yleck recognized the possession of the defendant as that of a vendee and not as that of a tenant, and the conclusion is irresistible that the lease was regarded by both parties as surrendered.

The case of *Burnett*v. *Scribner*(16 Barb. 621) is quite like the case before us, and sustains the ruling of the county judge.

The order must be affirmed, with costs.

DykmaN and Pbatt, JJ., concurred.

Order affirmed, with costs.