21 Abb. N. Cas. 304 | N.Y. Sup. Ct. | 1888
In February, 1887, the plaintiff let to the defendant the store floor of the house No. 72 Mott street, for the term of one year, from May 1, 1887, at the
A careful examination of the authorities bearing upon the subject has led me to the conclusion that the plaintiff has the right to recover. The law is well settled that where a tenant for one or more years holds over after the expiration of his term, the landlord has the option to treat him as a trespasser or as a tenant for another year upon the terms of the prior lease, so far as applicable. The right of the landlord to elect to continue the tenancy is unaffected by the fact that the tenant refused to renew the lease or give notice that he did not intend to occupy the premises for another term (Conway v. Starkweather, 1 Denio, 113; Schuyler v. Smith, 51 N. Y. 309 ; Dorr v. Barney, 12 Hun, 259.) Hence, if upon the facts found to exist in. this case, the holding over can be considered that of the defendant, the notice conveyed by the defendant’s letter of February 13, is unavailing as a defense.
The defendant claimed that it ceased to do business with O’Brien, who was one of its customers, on April 28, and
The application of the rule above stated may, in this instance, be a harsh one, hut the rule itself is founded in reason, and in my opinion rests upon sound principles. It is within the power of a tenant to sublet his premises to whomsoever he pleases, but he should be held answerable for the consequences that may follow from the acts of the person he places in the possession of the property of the lessor. If the undertenant wrongfully holds over, his immediate landlord may at once institute summary proceedings for his removal-It is possible that if such proceedings were diligently conducted, and possession yielded up in consequence to the-original lessor, the latter’s tenant may be absolved from the-liability he would otherwise be under, although I am not prepared to say that even this would be a defense. But the-tenant canno't place a third person in possession during the-demised term, and then passively permit a continuance of that possession, without being liable for the consequences of the holding over. The original landlord must^look to his-tenant, and has a right to insist upon full possession being-yielded up to him immediately on the expiration of the term. Surely, the tenant cannot be permitted to say, you rented the-premises to me and I sublet them or assigned my lease to-such persons as I saw fit, but when my term expired I paid no further attention to the premises and you must look to-those I enabled to go into possession for the rent or the value of the use and occupation. Where the under-tenant holds over, the tenant has the same remedy against him as the original lessor has against his lessee. If the under-tenant be irresponsible, that is the misfortune of the tenant, for. he ought to have known with whom he dealt when he permitted the former to enter into possession. At any rate he undertook'all the risks incident to the letting. The tenant may bean innocent party, but it was he to whom possession was' entrusted—it was he who agreed to surrender the premises at the end of the term—it was he who reaped the fruit of
I therefore conclude that the possession of O’Brien must be regarded as the possession of the defendant, that the latter is legally chargeable for the act of O’Brien in holding over after the term had expired, and is liable to respond to the plaintiff for the period sued for at the rate specified in the original lease.
Judgment accordingly.
Note on the Effect of Holding Over on the Relation of Landlord and Tenant.
Bight of landlord where there is a holding over.
In Conway v. Starkweather, 1 Denio, 113, wherein it was held that a landlord could distrain for rent accruing after a holding over by the tenant, the court say: “Where a tenant under a demise for a year or more, holds over after the end of his term, without any new agreement with the landlord, he may be treated as a tenant from year to year, and in all other respects as holding upon the terms of the original lease. The landlord has an election to treat him either as a trespasser, or as a tenant. He will be a trespasser if the landlord brings ejectment or resorts to summary proceedings under the statute to recover the possession. He will be a tenant if the landlord either receives or distrains’ for rent accruing after the end of the original term.....
“ The tenant has no such election as that which belongs to the landlord. If he holds over, though for a very short period without any unequivocal act at the time to give his holding the character of a trespass, he is not afterwards at liberty to deny that he is in as a tenant, if the landlord chooses to hold him to' that relation. If the tenant may
2. If a tenant for one or more years holds over after the expiration of his term, the owner of the premises may treat him either as a trespasser or as a tenant for another year, upon the terms of the prior lease, so far as applicable; and the right of the lessor to elect to continue the tenancy is not affected by the fact that the tenant has refused to renew the lease, and has given the lessor notice that he has hired other premises. Schuyler v. Smith, 51 N. Y. 309.
As to implied contract by tenant holding over, the case of Schuyler v. Smith (above cited) is opposed in Worthington v. Globe Rolling Mill, 9 Am. L. Rec. 693; s. c., 6 Cinn. Weekly L. Bul. 235.
3. The rule in Schuyler v. 'Smith (above cited) as to the landlord’s option to treat the tenant holding over as a trespasser or as a tenant,— followed in Smith v. Allt, 4 Abb. N. C. 205; s. c., 7 Daly, 492.
4. The right of the landlord to elect to regard a tenant holding over either as a trespasser or a tenant rests on the tenant’s breach of contract in so holding over, and not on his intention or motive in such breach. When, however, the question arises as to whether the landlord has elected to hold his tenant as tenant, then the length of time during which the tenant has been allowed to remain in possession without molestation, is one fact from which an election to hold him as tenant may be inferred. Witt v. Mayor of N. Y., 6 Robt. 441; an action for rent on the ground of implied renewal for another year.
Notice of intent to remove, given without reference to quarterly or other periods, is not equivalent to notice of intent to terminate tenancy. lb.
5. Where parties entered premises on May 1, under a void parol lease for more than a year,—Held, that the circumstances showed that a yearly tenancy was intended, although rent was paid monthly; they therefore-became tenants from year to year with the right to end their t unancy on notice on April 30. But if they retained possession after May 1, in any year, they became bound for the year ensuing, and could not terminate their liability by abandoning possession before the expiration of the year. Laughran v. Smith, 75 N. Y. 205 ; aff'g 11 Hun, 311.
See, also, that occupation under an agreement void by the statute of frauds becomes a tenancy from year to year,—Reeder v. Sayre, 70 N. Y 180; aff’g 6 Hun, 562; Taggard v. Roosevelt, 2 E. D. Smith, 100.
6. A tenant from year to year, who continues to occupy a portion of
7. Where a tenant holds over after the expiration of the term provided for in his lease, without any new agreement being made, there is an implied renewal upon the terms contained therein. [Citing Schuyler v. Smith, 51 N. Y. 309; Laughran v. Smith, 75 Id. 210.] Elwood v. Forkel, 35 Hun, 202.
Effect of notice on the relation.
1. The relation of landlord and tenant being once established, continues until severed by agreement of the parties, or some act or proceeding sufficient in law. The service of a notice by the landlord to pay rent or deliver possession does not have that effect. Ackley v. Westervelt, 10 Weekly Dig. 391.
2. A tenant of a farm on shares had, before the expiration of the year, given the owner notice to terminate their relation at the end of the year, which was accepted.—Held, that he could not thereafter insist that he was a tenant from year to year and entitled to notice to quit, Merritt v. Merritt, Abst. Abbott's Ann. Dig. 1887, p. 225.
When one in possession is a trespasser.
1. One who acquires possession of land with the consent of the owner, under an understanding that the owner should execute a lease of it to him, but refuses to accept a lease, and afterwards omits to comply with the owner’s demand for a surrender of the premises, becomes a trespasser. Welch v. Winterburn, 25 Hun, 437.
2. Tenant holding over after determination of particular estate,— Held, a trespasser. Griffin v. Porter, 3 Alb. L. J. 51.