Dawson v. Cerf

COOPER, J.

Action of unlawful detainer. Findings were filed, upon which judgment was ordered and entered for

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plaintiff for the restitution of the premises described in the complaint, besides rent and costs. This appeal is from the judgment on the judgment-roll with a bill of exceptions. The facts, so far as necessary to be stated, are as follows: In February, 1903, the plaintiff was in possession of a lot on the south side of California street east of Sansome, having a frontage of twenty-three feet-on California street by a uniform depth of sixty-six feet, together with the building thereon, 321 California street, under a lease from the Mutual Life Insurance Company of New York, which lease by its terms was to expire on the fifteenth day of March, 1904. During said month, and while plaintiff was so in possession of the premises, he leased or sublet a portion thereof known as the “cigar-stand” to the defendant for the term of one year and one and a half months, from February 1, 1903, to and including the fifteenth day of March, 1904, which was the time when the plaintiff’s lease from the insurance company would terminate. The lease to defendant provided that the rent should be $80 per month, payable monthly in advance. The lease contained the following clause: “If said lessor shall hold said premises at No. 321 California street, as tenant or otherwise, after March 15, 1904, it is hereby agreed for the parties hereto, their respective heirs, executors and assigns, that said lessee shall have the privilege of retaining the premises hereby demised upon the same terms and conditions as are herein expressed for such term as said lessee may elect, however not to exceed the term for which said lessor, his heirs, executors or assigns, may hold said premises as aforesaid ; and in no event to exceed a period of twenty years from date hereof.” Defendant entered into possession and paid his rent according to the terms of his lease up to the termination thereof, and there is no question raised as to the written lease during the time it was in force.

Before the written lease expired, on March 1, 1904, defendant paid to plaintiff the sum of $80, and received from him a receipt of which the following is a copy:

“Rent must be paid Mch. 1, 1904.

in advance. $80.