86 N.Y.S. 16 | N.Y. App. Term. | 1904
The testimony in this case establishes the fact that the defendant was a tenant from month to month, the term beginning upon the 15th day of each month. The only claim of right to dispossess the tenant, made by the landlord, is that on August 13, 1903, he wrote a letter to the tenant, which letter was delivered to her upon August 14, 1903, stating that from the 15th of August her rent would be raised from $50 to $100 per month. These proceedings were commenced on August 17, 1903. Being a monthly tenant, in the absence of the service of a notice to quit at least five days prior to the termination of the month for which she paid rent, the tenant had a right to retain possession of the premises for another month (Laws 1882, p. 369, c. 303), and she could only be thereafter dispossessed during that month for nonpayment of rent by the service of a notice demanding payment of rent within three days or the possession of the premises rented. Section 2231, subd. 2, Code Civ. Proc. Neither of such notices were served. These plain "provisions of the statute cannot be evaded by omitting to serve the required five days’ notice, and upon the last day of the term notifying the tenant that her rent is increased, and compel her to move without further notice. “If the landlord fails to give the notice five days before the end of the month, and the tenant holds over after the first of the next month, he becomes, by operation of law, a tenant for another month on the terms of the former hiring, the conventional relation still existing. * * * The five-days act* imposes certain protective duties which must be observed. Their observance secures fair play, and nothing more. Upon the whole it will
Final order reversed, with costs. All concur.