[1] Plaintiff has recovered a judgment for rent for the month of May of premises occupied by the defendants. It appears from the plaintiff’s testimony that the defendants occupied the premises under a written lease, which expired on May 1st. Thereafter they held over, and used and occupied the premises until about the middle of the month. About May 18th the plaintiff sent a man to defendants’ new place of business to demand the keys, and the defendants delivered up the keys.
“The law is well settled that, when a tenant under a demise for a year or more holds over after the end of his term without any new agreement with the landlord, he may be treated as a tenant from year to year, and in all other respects as holding upon the terms of the original lease. The landlord has an election to treat him either as a trespasser or as a tenant, and it is for the former to determine how he will treat him. * * * But such holding over puts the landlord to Ms election. He must either accept' the tenant as a tenant for a new term, or treat him as a trespasser. He cannot do both.” Goldberg v. Mittler, 23 Misc. Rep. 116, 50 N. Y. Supp. 733.
[2] In this case it seems to me that when the plaintiff demanded the keys, and received and retained them, he made a conclusive election not to treat the defendants as tenants under an implied lease for a year. At most he is entitled to recover for use and occupation, but he cannot claim that the relation of landlord and tenant continued after May 1st.
Judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.