If a monthly tenancy, is there a sufficient notice shown?
The rule relative to notices seems to be as follows: Where there is a lease for a certain period, the term determines without notice. Cobb v. Stokes, 8 East, 358; Right v. Darby, 1 Term R. 159; Decker v. Adams, 7 Halst. 99. In uncertain tenancies, reasonable notice was necessary, which reasonable notice had, from the time of Henry VIII., according to Lord Ellenborough, been six months. Doe d. Strickland v. Spence, 6 East, 120.
This rule was applied to all uncertain tenancies in this State, whether rent was or was not reserved. Den v. Drake, 2 Green, 523. The time was changed to three months by act of 1840, Pamph. L., 104, now, with a little change in the text, the twenty-seventh section of the landlord and tenant act in the revision. Rev., p. 575.
In cases of tenancies for periods running less than a year, the rule enunciated by the text-writers is, that the notice must be regulated by the letting, and must be equivalent to a period. Taylor on Land. and Ten. § 478; Archb. on Land, and Ten. 87. How the rule arose is uncertain. It certainly did not have its origin in any resolutions of the courts. Indeed, Baron Parke, in Huffell v. Armistead, 7 C. & P. 56, said that he knew of no decision holding a week's or month's notice was necessary to determine a weekly or monthly tenancy. See, also, the remarks of the judges, to the same import, in Towne v. Campbell, 3 C. B. 921.
It seems, however, to have clearly shaped itself into a custom. The habit of giving and requiring reasonable notice, in cases of tenancie's, not for a single term, but for recurring periods, which reasonable notice, when the periods were from year to year, was, according to Lord Ellenborough, very early held to be six months, was, probably by a custom equally as old, in tenancies for less periods, established as now stated by the books.
By strict relativeness, the rule of a half year's notice in tenancies from year to year, would only require a half month's or a half week's notice in cases of monthly or weekly tenancies. The briefness of the latter, and the length of the former kind of tenancies, was the probable reason why the rule was not uniform. Whatever the reason of the rule, it seems to have been well grounded in the general understanding of the English people. The cases cited by the books of authority in support of the rule already stated are merely recognitions of what was obviously a custom, and, as such, the cases would seem to have as much weight and authority as if they had expressly ruled the point.
The first is the case of Doe ex dem. Parry v. Hazell, 1 Esp. 94. It was a case of ejectment, tried before Chief Justice Kenyon in 1794. The full report of the case is as follows: The defendant had taken the house by the month, and a month's notice to quit had been given. It was agreed that the notice had reference, in all cases, to the letting, and that a month's notice was sufficient to entitle the plaintiff to recover.
In Peacock v. Raffun, 6 Esp. 4, tried before Lord Ellenborough in 1808, the court remarked that a week's notice to quit was certainly sufficient where the holding was weekly.
In Doe d. Campbell v. Scott, 6 Bing. 362, the same rule was, in 1830, recognized by the Court of Common Pleas. The rule was incorporated in the text of the books of authority upon this subject as the law, and may be considered as settled both in England and in this country, excepting where the matter of notice has been the subject of statutory regulation. Prindle v. Anderson, 19 Wend. 391; s. c. 23 Wend. 616; Seem v. McLees, 24 111. 192; Walker v. Sharpe, 14 Allen, 43.
The common-law rule I take to be undoubted, that notice is necessary to determine a monthly or weekly renting, and that a month's or week's notice, respectively, is sufficient.
2d. It is said that the notice in this case is insufficient, because the day for quitting named in the notice was the first of August, and not the last day of July.
The point made is, that according to the statement of the affidavit, the term originally commenced on the 1st day of May, and, by the usual mode of computation, it determined on the last day of the month. So, throughout the tenancy, the recurring periods each terminated on the last day of each month. It is, therefore, urged that the notice was given to quit on a day subsequent to the last day of the term, and that then a new term had commenced to run, and that, therefore, the tenant's holding must continue until determined by a new notice. Taylor on Land, and Ten. § 477.
It is true that the notice required to determine these tenancies must be given to quit at the end of a period. When a term has commenced without such notice, the tenant is entitled to remain during and bound to pay for the term.
A notice given to quit, in the middle of a term, is ineffectual. * * *
By strict computation, the term set out by the present affidavit probably terminated on the last midnight of July. I think it would be carrying the rule that a notice to quit must be made with reference to the end of the term, to an illogical and unreasonable length to hold that a notice given for the day commencing at that midnight is not a good notice. The law is ignorant of fractions of a day. The notice covers all and any period of the twenty-four hours from midnight to midnight. The very moment the tenancy expires the tenant is confronted with a direction to quit. On what process of reasoning can it be said that a new term has commenced before notice is given? * * * Judgment affirmed.
118 New York, 309. - 1890.
Bradley, J. - The action was brought to recover rent of premises described in a written lease made by the agent of the plaintiff's intestate to the defendants in January, 1884, for the term of two years and five months, commencing on the first day of March, 1884, and ending on the first day of August, 1886, at the yearly rent of $3,000, payable in equal monthly payments, on the last business day of each month. The authority of the agent to make the lease not being in writing, it was void. 2 R. S. 134, § 6. The defendants went into possession on the first of March, 1884, and continued to occupy and pay rent up to August, 1885, when they left the premises and sought to surrender the possession up to the plaintiff's intestate, who declined to accept it. He recovered for the amount of rent at the rate mentioned in the lease from the first of August, to the first of March following. While the cases are not entirely in harmony on the subject, the doctrine now in this State is such that the defendants on going into possession of the premises and paying rent, became, by reason of the invalidity of the demise, tenants from year to year, and in such case the continuance of occupancy into the second year rendered them chargeable with the rent until its close. They could then only terminate their tenancy at the end of the current year. Reeder v. Sayre, 70 N. Y. [80; Laughran v. Smith, 75 N. Y. 205.