Potter, J. - There are two questions involved in the consideration of this appeal. The one is whether the defendant was bound to give the plaintiff notice of its intention to quit the premises before it could successfully maintain a defense to the claim for rent set forth in the complaint in this action and if it was so bound, whether the undisputed facts established upon the trial of the action, do not constitute such notice.
If such notice was not required, or if required and was sufficiently given, the direction of the trial court to the jury to render a verdict for the defendant was proper.
From the examination I have given the record in this case, I entertain a clear conviction that the defendant was not bound to give the plaintiff such notice, and if it was bound to, sufficient notice was given.
The plaintiff's contention is to the effect that the tenancy of the defendant to the plaintiff, formerly existing, had not been legally terminated prior to May 1, 1886, and that the defendant continued liable to pay the plaintiff the rent of the premises from that date to the 1st day of November, 1886. It is undisputed that the occupation of the premises by defendant ceased upon the 1st day of August, 1885, and I am of the opinion that the legal tenancy ceased on the first day of May following that date.
The defendant had, prior to May, 1875, occupied the premises with the consent of the plaintiff for some years, and paid the plaintiff as annual rent from the same, the sum of seven hundred dollars in half yearly payments, upon the first days of May and November in each year.
In the month of April, 1875, the plaintiff gave the defendant notice that from May 1, 1875, the rent of the premises occupied by defendant would be twelve hundred dollars a year. Thereupon the common council of the defendant passed a resolution authorizing its mayor to lease the premises of the plaintiff for the period of three years from May 1, 1875, at a rent of twelve hundred dollars a year. There was no specification either in the requirement of the plaintiff or in the resolution of defendant when or in what instalments the rent should be payable. But that, is not at all important, for the defendant paid the increased rent half yearly as it had paid the former rent.
No written lease was executed between the parties, and as a parol lease for a period beyond one year is void, the relation that resulted between the parties was a lease for a year if the tenant occupied the premises during that period; and if the tenant continued in the occupancy of the premises beyond the year, he thereby became a tenant from year to year at the same rate of rent. Reeder v. Sayre, 70 N. Y. 180-182; Laughran v. Smith, 75 Id. 209; Coudert v. Cohn, 118 Id. 309-311; Talamo v. Spitzmiller, 120 Id. 37-43.
The language of the court in Reeder v. Sayres, supra, is: "The agreement, though by parol, and void as to the term and the interest in lands sought to be created, regulates the relations of the parties to it in other respects upon which the tenancy exists, and may be resorted to to determine their rights and duties in all things consistent with and not inapplicable to a yearly tenancy, such as the amount of rent to be paid, the time of year when the tenant could be compelled by the landlord to quit and any covenants adapted to a letting for a year. Doe v. Bell, 8 T. R. 579; 8 Cow. supra; Arden v. Sullivan, 14 Q. B. (Ad. & El. N. R.) 832; Doe v. Amey, 12 Ad. & El. 476; Berrey v. Lindley, 3 M. & G. 498; Edwards v. Clemons, 24 Wend. 480."
And the court through Justice Bradley in the above cited case, Talamo v. Spitzmiller, says: " 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. Sayre, 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 plaintiff contends that until the tenancy was terminated by a notice from the defendant that he intended at some definite future period to quit the premises, the tenancy and defendant's liability to pay the rent continued. Now what are the relations between land-lord and tenant in a tenancy for a year or from year to year in respect to the amount of rent and the duration of the term or of the cessation of tenant's liability to pay rent? The rate of rent is that specified in the lease for a year or in the void lease. When the term expires in a valid lease, at a fixed and defined period, or when the term is for one year by reason of the lease being void, under the statute of frauds and occupation for that period, no notice to quit is necessary. When the parties have agreed in the lease or the law has fixed the period of the termination of the tenancy, it would be a work of simple supererogation to give such notice. Hence where the duration of the term is fixed, there is no rule nor any reason for a rule, requiring any notice to quit to be given. § 107, McAdam, Landlord and Tenant, and cases cited.
In tenancies for a term fixed by the lease or by law for the want of a valid lease as to the term, the rights of the parties are determinate. The landlord in such lease has the right of an election. He may, if the tenant does not vacate the premises at the end of the term, treat him as a wrongdoer and bring ejectment or take summary proceedings under the statute to remove him from the premises, and he is not required before doing so to serve the tenant with any notice to quit Park v. Castle, 19 How. Pr. 29, and the cases there cited, or the landlord may waive his right to the immediate possession and the wrong of the tenant in remaining beyond the expiration of the term and recover of him the rent for another year, for the tenant by remaining over has, by implication, become a tenant for another year from the expiration of his term. § 21, McAdam L. and T., citing Schuyler v. Smith, 51 N. Y. 309; Mack v. Burt, 5 Hun, 28; Conway v. Starkweather, 1 Denio, 113. So absolute is the implication from holding over for a few days only, of a hiring for another year, that the tenant will not be excused from the payment of rent, even where he gave the landlord notice before the end of the term that he did not intend to hire for another year and had hired other premises which would be ready for his occupancy in a few days. Schuyler v. Smith, supra. A good illustration of this rule is to be found in the judgments put in evidence in this case where the plaintiff herein recovered the rent of the entire year, although the defendants had removed from the premises with the knowledge of the plaintiff nine months before the end of the year for which the plaintiff recovered the rent. At the end of the year thus hired by implication, the rights and the remedies which existed at the end of the former term are again revived. Those rights are, as we have seen, that the landlord may remove the tenant without notice and the tenant may quit the possession without giving the landlord any notice of his intention to do so. § no, McAdam, L. and T.; Park v. Castle, and the other cases above cited.