859 [2d ed]; see, Gray v Kaufman Dairy & Ice Cream Co., 162 NY 388). As
distinguished from an express surrender, a surrender by operation of law is inferred from the
conduct of the parties (Bedford v Terhune, 30 NY 453, 463; Rasch, op. cit. Section 859).
Whether a surrender by operation of law has occurred is a determination to be made on the facts.
We must determine whether the Appellate Division's finding that there was a surrender or Trial
Term's findings that there was not more nearly comports with the weight of the evidence (Cohen
and Karger, Powers of the New York Court of Appeals Section 112 [rev ed]).
Review of the record establishes that defendant, acting in response to plaintiff's request, gave
plaintiff advance written notice that it was about to vacate the premises pursuant to an earlier
"understanding." Plaintiff thereafter physically assisted defendant in departing and billed [*9]defendant for nominal damages sustained in the move. These facts
support the inference drawn by the Appellate Division that a surrender by operation of law has
occurred." Id. pps. 691-692.
In NY Real Property Rasch's Landlord and Tenant, Vol. 2, Ch. 26 deals with termination of
leases by surrender and acceptance.
The commentary observes that "there are two kinds of surrender of a lease...express
surrender [or] surrender by act or operation of law" (id. p. 283). It defines express surrender of a
lease as "...one voluntarily made by the express mutual agreement of the parties to a lease, and
expressly manifests an intention to reconvey the leasehold to the landlord...it is essential that
there be a mutual agreement between the landlord and tenant that the lease terminate [citing
Bedford v Terhune, 30 NY 453] (id. p. 283): In Bedford the Court stated "[I]t