The appellant does not deny the rule, but seeks to qualify it so as to mean that it is only where the tenant holds over voluntarily and for his own convenience that the landlord's right arises, and that it does not so arise when the tenant holds over involuntarily, not for his own convenience, but because he cannot help it. I am averse to any such qualification. It would introduce an uncertainty into a rule whose chief value lies in its certainty. The consequent confusion would be very great. Excuses would always be forthcoming, and their sufficiency be subject to the doubtful conclusions of a jury, and no lessor would ever know when he could safely promise possession to a new tenant. The cases cited by the appellant do not bear out his contention. In Smith v. Allt, 7 Daly, 492, the holding over was in part the act and assent of the landlord and occasioned by pending negotiations, and could not have been said to be the sole act of the tenant. In Shanahan v. Shanahan, 53 J. & S. 344, it appeared that the first of May was Sunday, that the tenant began to move on the afternoon of the second, that the removal continued during the third, and for that reason the tenant was held liable. The courts did interject the remark that there was no unavoidable delay in moving, but without seeking to change or modify the rule. In McCabe v. Evers, decided in 1890 in the New York City Court, it appeared that the tenant moved out on the first of May, but left behind him an old stove and some rubbish, and tendered the key on the second of May. The court held that the evidence of a holding over was inconclusive and ambiguous, and the question should have been submitted to the jury. In Maney v. Clemens, decided by the same court, the term expired on February second, at noon; the tenant began his removal in the morning and worked till midnight. There was a verdict against the landlord which the court refused to set aside.

These cases, even if regarded in all respects as correctly decided, fall very far short of establishing the appellant's doctrine or justifying a reversal in the present case. There is no question here about the fact of a holding over, and no question, therefore, in that regard for the solution of a jury. The tenant remained in possession voluntarily, for her own convenience and that of her sick boarder. If it was unsafe to remove the latter, the situation was wholly the fault of the tenant, who sets up as an excuse for one violation of the lessor's rights the consequences of her own earlier violation of the terms of the lease. No impossibility of removal was shown merely difficulty and inconvenience, which should have been and might have been foreseen and provided against. If the rule in this case seems to involve a hardship, that is sometimes true of every general rule, however just and wise, but does not justify its abrogation. To sustain this defense would open the door to a destruction of the settled doctrine and tend to involve the rights of both lessor and lessee in uncertainty and confusion.

I do not mean to say that whether there has been a holding over at all may not sometimes be so doubtful upon the facts as to require a submission to the jury. I mean to say that there is no such doubt in the present case. I reserve the question also, whether there might not be an unavoidable delay, in no manner the fault of the tenant, directly or indirectly, which would serve as a valid excuse. It is enough that here was a holding over not unavoidable, which might have been provided against, and where the chief difficulty grew directly out of the tenant's own wrongful act.

It is claimed, however, that the further question whether the lessor exercised the permitted option or took possession in her own right, should have been submitted to the jury. I think the facts admit of but one inference. The lessor did exercise her option, and that promptly and clearly. When the keys were tendered to her mother they were refused. In the afternoon of May fourth the lessor went to the house to see what was occurring. She found it deserted and the windows open. Her property needed protection. Under the lease she had a right to enter and relet it as the agent of the tenant. A policeman entered through the open window. Some keys were found on the mantel and thereafter used, but evidently not all, for others were restored much later. The premises were somewhat damaged and the lessor had a little painting and some plumbing done, amounting only to ordinary and needed repairs. She tried to rent the house but failed, and went to Europe during the summer, and occupied the house in the fall under a stipulation which expressly reserved her existing rights. Upon these facts no inference was justified, except that drawn by the court. There was a clear refusal to accept the surrender offered and the repairs were consistent with that position and with the right reserved in the lease.

We think the judgment was correct and should be affirmed, with costs.1

(2.) When He May Claim to be a Tenant at Sufferance.

Smith V. Littlefield

51 New York, 539. - 1873.

Ejectment. Defense, that defendant was in possession under a lease. Judgment below for plaintiff. Defendant appeals.

Earl, C. - The defendant hired the premises in question for one year, ending on the eighteenth day of April, 1865. He held over until the nineteenth day of June, without the consent of the plaintiff, when this action was commenced. The plaintiff had served no notice to quit, and the sole question for our consideration is, whether such a notice was necessary. At common law, a tenant who held over after the expiration of his term became a tenant by sufferance. He had only a naked possession, and no estate which he could transfer or transmit. He stood in no privity to his landlord, was not liable to pay any rent and was not entitled to any notice to quit. He held by the laches of the landlord, who could enter and put an end to the tenancy when he pleased. 4 Kent's Com. 118. This is still the law, except as modified by the statute. At common law, when by the terms of the lease the tenancy terminated at a day certain, the landlord could always commence his action of ejectment to recover possession of his land, after the expiration of the lease, without any notice to quit; and this he could do, although the tenant became a tenant by sufferance by holding over the term without his permission. It was only in a tenancy from year to year, the termination of which was uncertain, that the tenant was entitled to notice to quit. The object of the notice was to give him information when the lease would terminate. In the former case such notice was contained in the lease itself, and in such case I cannot discover that it was ever made the subject of complaint that the tenant could be removed without notice. If within the meaning of our statutes ( I R. S. 745, 746) 1 every tenant holding over his term for the briefest period is to be deemed a tenant by sufferance, and thus entitled to one month's notice to quit, then every lease for one year will be, at the will of the tenant, practically extended to a lease for thirteen months, as no proceedings can be instituted for his removal until the expiration of the month's notice. It cannot be conceived that the Legislature, in a case where the parties have in the lease fixed a day certain for the termination of the tenancy, intended that the tenant may, by his own wrong, extend his holding for another month; and a construction leading to such a result should not be tolerated if it can be avoided. The first statute in this State, for the summary removal of a tenant holding over his term, was passed April 13, 1820, and in that statute it was provided that "if any tenant or lessee at will or at sufferance or for part of a year, or for one or more years, or from year to year, hold over and continue in possession of the leased premises after the expiration of his term without the permission of his landlord," he may be removed in the mode prescribed in the act, provided that, "in case of a tenancy at will or sufferance, the landlord or lessor shall give three months' notice in writing to the tenant," etc. Under this statute the construction contended for by the plaintiff in this case would have prevented any procedure by the landlord, in the case of a lease for one year, until the expiration of fifteen months. It is quite clear that the tenancy at sufferance mentioned in this act which required the notice was not one created by simply holding over a definite term for a brief period without the permission of the landlord. This statute was substantially re-enacted in the Revised Statutes (2 R. S. 513),2 and they authorize the same summary proceeding where the tenant "shall hold over and continue in possession of the demised premises, or any part thereof, after the expiration of his term, without the permission of the landlord." This authorizes, and has always been understood to authorize, the proceeding without previous notice in all cases where the tenant holds over a definite term without the permission of his landlord, notwithstanding § 31, which requires that before the magistrate shall issue the summons in the case of a tenancy at will, or at sufferance, he shall be satisfied "that such tenancy has been terminated by giving notice in the manner prescribed by law," and the notice required is one month. 1 R. S. 745. Why terminate the tenancy by notice when its termination is definitely fixed by the terms of the lease? Was it the intention of the Legislature that, in the case of a tenancy for one year, the tenant could wrongfully hold over for fifteen, twenty or thirty days without the permission of his landlord, and then, by his own wrong, -entitle himself to one month's notice before he could be removed, or even proceedings instituted to remove him?