In Ludington v. Garlock, 29 N. Y. S. R. 600, it was held in a case of a lease from month to month and the tenant held over, that the tenant who vacated the premises at the end of a subsequent month and gave the agent of the landlord notice of that fact and left the keys with him, that the tenant was no longer liable for the rent of the premises. That case is analogous to this in all respects, except that was a tenancy from month to month and this is a tenancy from year to year. In that case the tenant paid during the time of the occupancy and quit at the end of the month. In the case at bar the defendant did not quit the possession at the end of the year as it had the right to do and was, therefore, compelled to pay for nine months after it quit the premises, because it did not quit the premises at the end of the year, but occupied them three months beyond the end of a year.
It is quite apparent from the cases above cited that the necessity or occasion for the service of a notice to quit upon the part of the landlord or tenant, has no application to a tenancy which terminates at a fixed period. It is only in cases where the end of the term is not fixed, as in tenancies at will or at sufferance, that the landlord is required by law before bringing ejectment or summary proceedings to recover possession from a tenant to give notice to quit. 2 R. S. 5, § 28; 1 Id. 745, § 7. Those statutes are evidently based upon that theory. Park v. Castle, supra.
I find no case, and upon principle I should not expect to find a case, holding that it was not the right of the tenant to leave the premises at the end of the term or requiring him to give the landlord in such case a notice of his intention to quit the premises.
We have before seen in Park v. Castle, supra, and the other cases cited, that in such case the landlord is not bound to give the tenant notice to leave even for the purpose of instituting summary proceedings to recover possession of the premises.
If such is the case in respect of the landlord, why should it not be so as to the tenant? Their rights and duties are correlative or reciprocal.
My conclusion is that the defendant in this case had the right to quit the premises at the end of any year from the first day of May, without giving the plaintiff any notice of his intention to do so.
V. Tenancy at sufferance.
JACKSON ex dem.
5 Johnson, 127. - 1809.
This was an action of ejectment. The cause was tried at the Oneida Circuit, the 5th June, 1809, before Mr. Justice Yates.
At the trial it was proved that the lessor of the plaintiff, by his attorney, duly authorized for that purposes, on the 1st April, 1803, executed a lease of the premises in question to the defendants, for three years, ending on the 1st April, 1806. On the 15th December, 1807, the attorney of the plaintiff sent a written notice to the defendants, demanding a surrender of the possession of the premises, and that, if they neglected to deliver up the possession, they would be answerable for double rent; and that the lessor refused to let them occupy the premises. The defendants were in possession when this suit was commenced. It appeared, that in June, 1806, one of the defendants applied to the attorney of the lessors, to know if he had received any instructions as to leasing or selling the premises; who replied, that he had not, nor was he authorized to make any new agreement with the defendants, but advised them to continue in possession, until they heard from the lessor. The attorney received no instructions as to a new agreement, until some time in the autumn of 1807, when he was empowered to execute a new lease of the premises to the defendants for seven years; but the defendants refused to accept the lease.
The counsel for the defendants insisted, that the defendants were entitled to a notice to quit, previous to bringing the ejectment; and, under the direction of the judge, the jury found a verdict for the plaintiff, subject to the opinion of the court, on the question, whether the defendants were entitled to such notice.
The case was submitted to the court without argument.
Per Curiam. - No notice to quit was requisite in this case. After the expiration of the lease, the tenants did not continue in possession by any new agreement with the plaintiff; nor did the plaintiff do any act whatever, from which a renewal of the contract, or a consent to the tenant to hold for a year could be inferred. The proof is decisive that the agent, who gave the lease for three years, had no authority to make any new agreement, and that he so declared to the tenants. The defendants were, therefore, no more than tenants at sufferance. There must be a judgment for the plaintiff.
Judgment for the plaintiff.1
1 But of course notice would be required now in New York R. P. L. § 198. For other cases on tenancy at sufferance see pp. 735-740, supra. - Ed.