6 Lans. 180 | N.Y. Sup. Ct. | 1871
This is an action of replevin, brought to recover the possession of a quantity of household property, which the plaintiff alleges the defendant has unlawfully taken and detained.
The plaintiff entered into an agreement with defendant to work for him as laborer; he was to have toward his wages the use of a cow and pasture for her, the use of a house and other property and privileges, and twenty dollars per month as long as they could agree.
The plaintiff commenced work for defendant about the 1st April, 1869, and took possession of a house belonging to the defendant and continued to work for him for about seven months, when defendant, as plaintiff claims, discharged him from his employment. At the time of the dischaige defendant told plaintiff he must have possession of the house, and plaintiff promised to give up the possession as soon as his wife was well enough to be removed. The plaintiff testifies that the defendant then told him he must have rent for the use of the house and that he agreed to pay it. The defendant refused to rent it far any definite length of time. Plaintiff told him he wanted due notice when he must quit the premises, to which remark defendant made no reply; subsequently the defendant demanded rent, and plaintiff told him to deduct it from some money he says defendant owed him.
About the holidays plaintiff and his wife went to visit her father, leaving their goods in the house, intending to return the next day, but the weather being bad they could not. While plaintiff and his wife were at her father’s, plaintiff returned to the premises in question to feed his pigs left there. While plaintiff was thus absent, defendant entered the house and removed plaintiff’s goods, from the rooms in which he left .them, on to the stoop and into a small room in
The defendant on his own behalf testified there was no letting of the place for any particular term, nor was there any talk about rent, nor did he owe plaintiff anything from which rent could be deducted.
The court charged the jury that the tenancy terminated when plaintiff was discharged from defendant’s employ, and defendant had the right to remove plaintiff’s goods unless there was a new tenancy created after the former one terminated, by virtue of which plaintiff had the right to possession so long as he paid rent, or until a notice to quit was served. If such tenancy was created, defendant had no right to enter and put out plaintiff ’s goods and if he did, he was liable in this action. The only exception to the charge is in these words, the defendant’s counsel excepted to that part of the charge in which the jury is instructed that the defendant was liable in this form of action. The court had given no such instruction, unless accompanied by qualifications that rendered instruction entirely proper. If the defendant is entitled to a new trial upon any ground taken, or suggested at the trial, it is because his motion for a nonsuit was. improperly denied. The motion was denied on the ground that there was evidence in the case of an agreement between the parties, after the plaintiff was discharged, that the plaintiff should remain in possession as a tenant of defendant so long as he paid rent or until he had written notice to quit..
In order to a proper disposition of the question raised upon this motion it is necessary to ascertain the exact relation the parties occupied toward each other at the termination of the contract of hiring. That contract and the occupancy of the .dwelling-house under it did not create the relation of land
If the relation of- landlord and tenant did not exist, the plaintiff was not in possession as a tenant holding over, after the expiration of his term, but he was in as a servant dismissed from service, but incapable by reason of the condition of his wife from removing. It was in this cohdition of things that the plaintiff asked permission to remain until his wife could get ready to leave, and that the plaintiff said he should look to him for rent. If an agreement is to be implied from the facts stated by the plaintiff, it must be an agreement that plaintiff remain, paying rent, until his wife was well enough to remove. Ho other time was talked of or desired by the plaintiff, and it is obvious that defendant only consented to plaintiff’s occupancy until that event occurred. The plaintiff was not a tenant at will nor at sufferance, but until the happening of a future contingent event. If was shown that in December the wife was well enough to leave on a visit to her father, and that the plaintiff removed a part of his property to her father’s.
In the absence of all evidence to the contrary, these facts established the wife’s ability to remove, and, if so, the time for which plaintiff had permission to occupy had expired, and the defendant had the right to enter and put out the plaintiff’s goods.
The learned judge would seem to have been of opinion that the new letting’ was to terminate at the will of the defendant, and hence plaintiff was entitled to notice to quit; but such is not the proof. The plaintiff was permitted to occupy only until his wife was well enough to remove. (Woodfall, 228; 3 Hill, 90; 2 Sup. U. S. Dig., 251, § 14; id., 289, § 56; id., 295, §185; 12 J-. R., 182; Woodf., 181.)
Assuming that the acts and declarations of the parties would justify the jury in finding an agreement that plaintiff might remain in possession, paying rent, the question then arises whether defendant was under any legal obligation tc
In Woodfall’s Landlord and Tenant (236) it is said that if a tenant whose lease has expired retains possession pending a treaty for another lease, he is not a tenant from year to year, but at will, so strictly as that no notice to quit is necessary.
In Jackson v. Parkhurst (5 J. R., 128) the facts were similar to those set out in the preceding extract, except that in this case the lessor’s agent gave the tenant permission to occupy until he heard from the lessor.
The agreement in this case was no more distinctly proved than in Ballentine v. McDowell (2 Scam., 28). It was proved in that case that defendant, while in possession under a former agreement, had a conversation with plaintiff’s agent, in which the latter desired the former to pay a certain amount of rent. This defendant refused to do, but offered a smaller sum, which was not agreed to, but defendant continued to occupy. It was held the evidence was insufficient to establish the relation of landlord and tenant, or to support an action for use and occupation.
In McGee v. Gibson (1 B. Munroe, 105) it was held that when a farmer employs a laborer for a year at a stipulated price per month, and agrees to provide Mm a house at two dollars per month, payable monthly, the laborer is a tenant at will, and when he ceases to labor his tenancy is determined, and no notice to quit is necessary.
I am of opinion that the ruling at the Circuit was erroneous upon each and all of the following grounds :
1st. The plaintiff was not a tenant holding over, but a mere servant, suffered to remain in his master’s house after his time
2d. There was not sufficient evidence to justify the jury in finding an agreement to let the premises to the plaintiff.
3d. If there was an agreement it was to continue until the plaintiff’s wife got well, and that event occurred before the defendant entered.
4th. If there was a tenancy, it was not one requiring notice to quit in order to terminate it.
Enough was done by the defendant to subject him to an action of trespass for his unlawful interference with the property, if his entry had not been justified. (Foulder v. Willougby, 8 M. & W., 540.)
The order refusing a new trial is reversed, and a new trial granted, costs to abide the event.
Hew trial granted.