premises for three weeks after the expiration of the lease, and plaintiff claimed he had the right to hold them as tenants for the whole year. This they denied, because they gave him notice before the expiration of the term that they did not intend to occupy the premises for another year. The court held that plaintiff's claim was well founded, saying:

"The law is too well settled to be disputed that, where a tenant holds over after the expiration of his term, the law will imply an agreement to hold for a year upon the terms of the prior lease. And hence a tenant who

*

*

has obtained possession of real estate cannot dispute the title of his landlord: and, having obtained possession from his landlord, he should not be permitted to hold over, deny his tenancy, and convert himself, at his option, into a wrongdoer. * The safe and just rule I believe to be the one, established by authority, that a tenant holds over the term at his peril; and the owner of the premises may treat him as a trespasser or as a tenant for another year upon the terms of the prior lease, so far as applicable."

And this case was adopted as stating the law in U. M. Realty & Imp. Co. v. Roth, 193 N. Y. 570, 86 N. E. 544. In the latter case Judge Vann, whose opinion on this question was concurred in by all the court, says:

"These facts constitute a cause of action, because the law implies from the fact of occupancy under the circumstances alleged that the defendant assented to the terms stated."

The statement in the opinion of Judge Parker in the case of Genet v. Delaware & Hudson Canal Co., 170 N. Y. 278, 63 N. E. 350, had relation only to the effect of waiver by the payment of royalties to terminate a contract, a question which is not important here, as the obligations of the defendant depend, not upon payment of rent, but upon continued holding over of the premises after the termination of the lease by death of the life tenant or by notice given to terminate the lease on May 1, 1910. It was then the option of plaintiffs, and not the defendant, as to whether defendant should continue to be a tenant or a mere trespasser, and by bringing this action plaintiffs have elected to consider defendant as tenant, and thus entitled to enforce its obligation to pay for the property, the value of this use and occupation to be determined by the former lease. If these views are correct, it follows that the plaintiffs were entitled to judgment, and the court erred in dismissing the complaint.

The conclusions of law as stated in the court below are modified accordingly, and judgment directed for the plaintiffs for the amount paid by plaintiffs for the taxes for the years 1911 and 1912, with interest and costs.

MCLAUGHLIN and DOWLING, JJ., concur.

HOTCHKISS, J. I think the appeal must prevail, but I cannot reach this result by the course of reasoning adopted by the Presiding Justice. Beginning with August 4, 1910, defendant's payments to plaintiffs were accompanied by a written communication, to which plaintiffs commonly responded, and it is to this correspondence that both parties appeal as evidence of their respective rights. In a letter

from defendant's attorney to plaintiffs' attorney of August 4, 1910, they say that:

"To avoid suit against our client premises, * *

* * *

for use and occupation of the

** possession of which was awarded your clients by the recent order of the Municipal Court, from which order an appeal has been taken and is now pending, we hand you * * our check for $450, which payment is made and shall be deemed to be accepted by your client without prejudice to the rights of any of the parties."

On the same day, by letter headed "Hinton v. Bogart," receipt of this check "for use and occupation" up to August 1st was acknowledged and accepted "without prejudice to any rights * * * of any of the parties in the above-entitled action." On November 21st defendant's attorneys remitted a further check for $450, accompanied by a letter in terms almost identical with those of their letter of August 4th, of which check plaintiffs' attorneys acknowledged receipt by letter identical in form with their former letter. On March 11, 1911, defendant's attorneys sent their check for $450, stating that it was to avoid suit, and was for "use and occupation" of the premises for the preceding quarter, possession of which had been awarded to plaintiffs by the Municipal Court, the order of which was said to have been affirmed, and that the payment was made "without prejudice to the rights of any of the parties." Receipt of this check was accepted by plaintiffs' attorneys "without prejudice to the rights of any of the parties."

It will be noticed that the previous payments had been made and accepted in terms which refer to the dispossess proceedings then pending and "without prejudice" thereto, and that, the dispossess order having been affirmed, the last payment was made and accepted simply "without prejudice" to the rights of the parties as they stood. Thereafter, and down to the commencement of this action, checks for the sum of $450 were regularly sent each quarter, and were either accompanied by a formal statement that they were sent on account of "use and occupation" and "without prejudice to the rights of the parties," or their receipt was acknowledged by plaintiffs in similar terms.

In order to avoid defendant's rights under the lease, it was not necessary that a warrant should have issued. An abandonment of the premises would have worked the same result. Gallagher v. Reilly, 10 N. Y. Supp. 536; Ash v. Purnell, 11 N. Y. Supp. 54; Boehm v. Rich, 13 Daly, 62. But actual abandonment was not necessary. It was sufficient if the parties did some act so inconsistent with the subsisting relation of landlord and tenant as to imply an agreement to surrender. As shown by Judge Werner in Gray v. Kaufman Dairy Co., 162 N. Y. 388, 394, 395, 56 N. E. 903, 904, 49 L. R. A. 580, 76 Am. St. Rep. 327:

"A surrender is implied, and so effected by operation of law within the statute, when another estate is created by the reversioner or remainderman with the assent of the termor incompatible with the existing state or term."

In the light of the fact that plaintiffs were in a position at any time to have a warrant issued to dispossess defendant, and in view of the great care taken by the parties over so long a period to see to it that all quarterly payments were made and accepted as for "use and

occupation," and their avoidance of the use of the word "rent," or the doing of any act to evidence an intent by either party to commit himself to a recognition of a continuance of the relation of landlord and tenant under the lease, I think it is clearly contrary to the evidence to hold that either intended by his acts to recognize that lease as a continuing obligation, and for this reason the principle of Schuyler v. Smith, 51 N. Y. 309, 10 Am. Rep. 609, has, as I view it, no application.

As to both parties, the payments for "use and occupation" must be deemed to have been made with intent to create some other and different estate than that evidenced by the lease. What was the new estate or relation so created? I think it was an estate by sufferance, and that because of the stipulations of the parties, as shown by their correspondence, this tenancy has never become a tenancy at will (Smith v. Littlefield, 51 N. Y. 539; Real Property Law, § 33; McAdam on Landlord & Tenant [4th Ed.] 112), and that plaintiff "may recover a reasonable compensation for the use and occupation" of the premises. Real Property Law (Consol. Laws, c. 50) § 220. Prima facie, such compensation would be the amount reserved in the lease (Id.), which includes the taxes in question. The fact that the complaint was not framed so as to claim in specific language the amount of these taxes as the remainder due on account of use and occupation, I think, is of no importance. The facts are all alleged, and from these the character, in law, of the sum expressed by the taxes follows.

LAUGHLIN, J. (dissenting). I think the judgment of the trial court was right, and that in any event this is not a case in which the judgment should be reversed and a judgment in favor of the plaintiffs substituted therefor.

The action is not for use and occupation, but for a breach of the provisions of the lease, it being alleged that the defendant failed to pay the taxes as agreed therein, and that the landlords were obliged to pay them; and the action is to reimburse them therefor. It was held by the Appellate Term, on an appeal from an order granting judgment for plaintiffs on the pleadings in a former action for the same relief, which was subsequently discontinued, that if the defendant proved the allegations of his answer, to the effect that notice was given by the landlords terminating the tenancy at will, and that this was followed by dispossess proceedings, which resulted in a final order in favor of the landlords, upon which, however, no warrant was issued, and that the defendant held over thereafter, the lease ceased to be binding, and he was under no obligation thereunder to pay the taxes, and would be liable there for only by virtue of some new agreement, express or implied. Hinton v. Bogart, 79 Misc. Rep. 418, 140 N. Y. Supp. 111.

It is conceded in the prevailing opinions that the defendant is not liable on the lease, and that his only liability is for use and occupation; but it is contended therein that the rent reserved by the former lease and the obligation of the tenant to pay taxes thereunder are evidence of the value of the use and occupation. Undoubtedly the lease would be competent evidence of the value of the use and occupation, if that were an issue in the case; but it would not be conclusive evi151 N.Y.S.-51

dence on that point, and defendant might well claim that the quarterly payments he made for use and occupation "without prejudice" constituted the fair and reasonable value of his use and occupation. But, as I view it, there was no issue with respect to the value of the use and occupation presented by the pleadings or litigated upon the trial.

In the circumstances, therefore, I am of opinion that the plaintiffs are not entitled to recover in this action, which was brought and tried upon the theory that the defendant was liable for the payment of the taxes by virtue of the provisions of the lease.

I therefore vote to affirm the judgment.

(88 Misc. Rep. 250)

PEOPLE ex rel. B. D. PIERCE, JR., CO. v. SOHMER, State
Comptroller, et al.

(Supreme Court, Adjourned Special Term, Albany County. December, 1914.) MANDAMUS (§ 105*)-PEREMPTORY WRIT-HIGHWAYS.

Where a contractor's work on a state highway has been approved from month to month by those charged with the duty of inspection and supervision, and has been reported as complete on a final inspection, and a certificate to that effect been issued by the department charged with the responsibility of acceptance, the contractor may by mandamus compel acceptance of the work by the commissioner of highways and payment by the comptroller.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. § 223; Dec. Dig. § 105.*]

Mandamus by the People, on the relation of the B. D. Pierce, Jr., Company, against William Sohmer, as Comptroller of the State, and John N. Carlisle, as Commissioner of Highways of the State. Ordered that peremptory writ be granted.

Eugene D. Flanigan, of Albany, for relator.

James A. Parsons, Atty. Gen. (James J. Barrett, Deputy Atty. Gen., of counsel), for comptroller and commissioner of highways.

RUDD, J. The contract for the construction and improvement of this highway was entered into June 17, 1911. The state reserved the right to make such changes in the plans and specifications as might from time to time seem to be necessary. The state also reserves the right to make such additions, deductions, or changes as it deems necessary, making an allowance or deduction therefor at the relative prices of the proposal for this work, and this contract should in no way be invalidated thereby. Certain changes were from time to time made, and the contract was modified. A supplemental contract was entered into May 8, 1912, and a still further supplemental or special agreement was made under date of June 12, 1913.

Certain work was done. Certain materials were furnished. Monthly estimates were made. The construction of the work was supervised by the representatives of the state in the persons of division engineers, and in June, 1913, the contractor notified the state authorities

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

that the work was completed. The state caused official inspection to be made, and on the 22d day of July, 1913, the state commissioner of highways issued an order accepting the highway. At this time there was due to the contractor $15,559.11, including certain percentages of monthly estimates which had been retained by the state in accordance with the terms of the contract. Demand for the payment of the sum alleged to be due has been made upon the comptroller and the sum demanded as due has not been paid.

The state commissioner of highways in effect states that, while this highway was accepted in July, 1913, the acceptance was void for the reason that it was based upon inaccurate and incorrect information, and that as a matter of fact the highway has not been completed by the contractor. The commissioner of highways states that after the acceptance of July, 1913, he caused an investigation to be made, resulting as he says in a report to the effect that the work had been properly done, and because of that report, in July, 1914, the commissioner of highways made an order canceling the contract and rescinding the former acceptance of the work. There is no allegation of fraud or deceit.

The report, dated June 5, 1914, upon which the commissioner of highways bases his order rescinding the former acceptance of the work, is to the effect that the specifications were not in all respects carried out. If that was the fact, it could have been ascertained prior to the acceptance of the work in July, 1913, and it could have been known and must have been known to the representatives of the state, the inspectors and division engineers, during the progress of the work. If it was known, that was the time to call the matter to the attention of the contractor. Monthly estimates should not have been given, if such was the fact. The state authorities should not have allowed the road to proceed a single week under such conditions. The state should be bound by the acts of its inspectors and division engineers equally as the contractor is bound and controlled.

Almost a year elapsed between the formal official acceptance of the road in July, 1913, and the order rescinding acceptance in July, 1914, during all of which time the road has been in use for all kinds of traffic. There being no fraud alleged in the carrying out of the work by the contractor, the state is bound by the official acceptance of the work made in July, 1913, which acceptance was based upon investigation made by the state representatives, resulting in reports from engineers charged with the responsibility of making that investigation.

The acceptance of the road was not an idle ceremony, and it must be assumed was not done thoughtlessly or stupidly. It was done in accordance with the law and with the provisions of the contract, and it is binding upon the party who did it. When a contractor's work is apparently being done to the satisfaction of the state, as evidenced by the approval, from month to month as the work progresses, of those charged with the duty of inspection and supervision, and finally, when the contractor announces to the state a completion of the work, and the state finally and formally inspects and examines as to whether completion has been had, and the report of such inspectors is to the