Curia, per
The notice to quit terminated the tenancy at will; and converted it into a tenancy from year to year. A tenancy at-will is held to be a ten ancy from year to year, merely for the sake of a notice to quit; and the landlord cannot recover possession without giving six months notice; but this notice is not necessary for any other purpose. (Phillips v. Covert, 7 John. Rep. 4, 5.) The question then is, on what terms shall the defendant be considered as holding; after the tenancy at will ceased. Though he could 'not be ousted on such a notice, yet he must be considered as holding over; for his interest was at an end. The rule seems to be, in such cases, that where there is no new stipulation, an implication arises of a tacit consent on both sides, that the tenant shall hold from year to year at the former rent. (Doe v. Bell, 5 T. R. 472, per Ld. Kenyon, Ch. J. Abeel v. Radcliff, 15 John. Rep. 505.) This manner of terminating a tenancy at will is of but little
What then was the former rent ? Although the plaintiff was not, in fact, to receive any thing, yet the defendant was to pay the ground rent to the landlord paramount, namely, 6 dollars 25 cents, this being all that was exacted for lot and building. This was virtually so much rent to be paid to the plaintiff, who owed it to Vanderheyden. I do not perceive on what principle the plaintiff can claim more. The case is not like that of Abeel v. Radcliff, (15 John. Rep. 507.) There the first rent was for the lot merely. Afterwards buildings were erected; and the Court held that the annual value of both land and buildings was the proper-measure of damages. Here the rent of 6 dollars 25 cents was for the whole. There must be a new trial, with costs to abide the event.
New trial granted.