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P leased to D the roof of his building for the term of Five years' beginning January 1, 1931, at a rental payable in semi-annual payments of $75 each, beginning January 2, 1931. D intended to use the roof for advertising purposes. Since the signing of the agreement, D has removed structures that she had on the roof under an earlier use or occupancy and has not again used the roof. There was no evidence of surrender, or eviction, or repudiation of the contract on either side. Nothing has been paid by D under the agreement. P brought this action to recover three semi-annual payments of $75 each, with interest. The trial judge found for P. The appellate division dismissed the appeal and D appealed to this court.

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