1 See also Schuyler v. Smith, 51 N. Y. 309. - Ed.
1 § 198, N. Y. R. P. L. - Ed.
2 §§ 2231-2265, N. Y. Code Civ. Pro. - Ed.
The notice is clearly necessary only in case there is such a tenancy at will or by sufferance as needs to be terminated. Such a tenancy is not created within the meaning of the statute by the tenant simply holding over his term without the assent of his landlord. To entitle the tenant who holds over a definite term to notice, the holding over must be continued for such a length of time after the expiration of the term, and under such circumstances as to authorize the implication of assent on the part of the landlord to such continuance. In such case the tenancy existing by the implied assent of the landlord ought to be terminated before the tenant can be removed, and in such case the tenant is a tenant by sufferance within the meaning of the statute and cannot be removed by summary proceedings or action of ejectment without the previous notice to quit. The construction I have thus given to these statutes is the one generally, if not universally, prevailing in practice, and while I have found no controlling decision directly in point, it is sanctioned by the opinions of learned judges. It is sustained by the opinion of Ch. J. Savage in Rowan v. Lyttle, 11 Wend. 617, and by the judges who wrote opinions in the following cases: Allen v. Jaguish, 21 Wend. 631; Garner v. Hannah, 6 Duer, 270; Livingston v. Tanner, 12 Barb. 484.
I, therefore, reach the conclusion that the judgment should be affirmed with costs.
2. Creation of the Term.1
a. By deed or other writing or by parol.2
Bradley, J., in
120 New York, 37. - 1890.
The plaintiff not being a party to the lease, assumed no legal obligation to pay rent for the term, as a lease for more than one year not in writing was void. 2 R. S. 135, §§ 6, 8.3 The agreement between the parties and under which the plaintiff entered into joint occupancy with the defendant being void, gave to the plaintiff no right and imposed upon the defendant no obligation to permit him to go into or remain in possession of any portion of the house, and unless he became a yearly tenant, his liability was for use and occupation for the time only which he occupied. Thomas v. Nelson, 69 N. Y. 118.
The mere fact that a person goes into possession under a lease void because for a longer term than one year, does not create a yearly tenancy. If he remains in possession with the consent of the landlord for more than one year under circumstances permitting the inference of his tenancy from year to year, the latter could treat him as such, and the tenant could not relieve himself from liability for rent up to the end of the current year. And the terms of the lease, void as to the duration of term, would control in respect to the rent. Coudert v. Cohn, 118 N. Y. 309. The parol agreement for five years was not effectual to create a tenancy for one year. Nor did the mere fact that the plaintiff went into possession, have that effect. He remained in occupation a part of one year only, and the creation of a tenancy for a year was dependent upon something further. While it is not required that a new contract be made in express terms, there must be something from which it may be inferred, something which tends to show that it is within the intention of the parties. The payment and receipt of an instalment or aliquot part of the annual rent, is evidence of such understanding, and goes in support of a yearly tenancy, and without explanation to the contrary, it is controlling evidence for that purpose. Cox v. Bent, 5 Bing. 185; Bishop v. Howard, 2 Barn. & C. 100; Braythwayte v. Hitchcock, 10 M. & W. 494; Mann v. Lovejoy, Ryan & M. 355; Thomas v. Packer, 1 Hurl. & N. 672; Doe v. Crago, 6 C. B. 90.
1 This may be by devise or by an agreement inter partes. Probably the only case of a term arising by operation of law is the widow's quarantine. § 184, N. Y. R. P. L., and similar statutes. - Ed.
2 Technical words to create a lease are, demise, lease, to farm let, but "whatever words are sufficient to explain the intent of the parties that the one should divest himself of the property and the other come into it for a determinate time, whether they run in the form of a license, covenant or agreement, will, in construction of law, amount to a lease as effectually as if the most proper and pertinent words were made use of for that purpose." Watson v. O'-Herne, 6 Watts (Pa.), 362, 368. - En.
3 § 207, N. Y. R. P. L. In many of the States a parol lease is valid if not made for a longer term than three years. - Ed.
While there may appear to have been some confusion in the cases in this State upon the subject, this doctrine has been more recently recognized Reeder v. Sayer, 70 N. Y. 184; Laughran v. Smith, 75 Id. 209.
In the cases last cited the tenants had been in possession more than a year when the question arose, but having gone into occupancy under an invalid lease, their yearly tenancy was held dependent upon a new contract, which might be implied from the payment and acceptance of rent, and when once created could be terminated by neither party, without the consent of the other, only at the end of the year. The contention, therefore, that by force of the original agreement between the parties, aided by the fact that the plaintiff went into the possession with the consent of the defendant, a tenancy from year to year was created is not so, and this is not alone sufficient to support an inference of the new contract requisite to create a yearly tenancy. The plaintiff paid no rent, nor while he was in possession was any request of or promise by him made to pay any. He simply went in under the original void agreement and left within the year. There was no evidence to require the conclusion of the trial court that the plaintiff had assumed any relation to the premises, which charged him with liability other than for use and occupation, during the time he remained in possession. The defendant's counsel, to support his proposition that the entry by the plaintiff with the consent of the defendant made him a yearly tenant, cites Craske v. C. U. P. Co., 17 Hun, 319, where it was remarked that a parol lease for a longer term than one year "operated so as to create a tenancy from year to year."