19 Wend. 391 | N.Y. Sup. Ct. | 1838
By the Court,
It is not pretended that the proceedings subsequent to the affidavits, were irregular; and we do not, on certiorari, look into the merits.
Does the affidavit of Anderson make out a tenancy and a holding over ? 2 R. S. 422, § 28, sub. 2. The agreement by parol was void within the statute of frauds, 2 R. S. 69, § 8, 2d ed. If otherwise, it was executory, and conferred no interest in the lessee. The rule insisted on, that the oral agreement became valid for the year and 8 months, by a past execution, has no application in a court of law. It did not become valid as such. Beside, the defendant refused to accept the lease for the term proposed.
The tenancy is then left to be inferred from the entry and the time at which .rent was paid. I think the oral agreement is to be laid entirely out of view. .. Had Anderson refused to execute the lease, the oral agreement, though void as such, might according to several cases be called in, in aid of the course of holding and paying rent; and ori the whole case, we might be obliged to infer that the tenancy was intended for the year and 8 months, on a monthly rent, or at any rate that it was for more than a month; say at least for one year. Doe, ex dem. Peacock, v. Raffan, 6 Esp. R. 4. Doe, ex dem. Riggs, v. Bell, 5 T. R. 471. Schuyler v. Leggett, 2 Cowen, 660. But the affidavit (though I confess rather hesitatingly) throws the refusal upon Prindle. We are then thrown back upon the course of holding and paying rent: and it has been well "decided by Lord iEUenborough, that where this is on an actual payment of rent at periods less than one year, as from week to week, the tenancy ¡'must be" taken to run accordingly. Doe, ex dem. Peacock, v. Raffan, 6 Esp. R. 4. Here then, so far, we must say the affidavit shows, argumentatively and on just inference, a tenancy from month to month. Lord Ellenborough decided, in the same case that the time of notice to quit must be regulated accordingly, and that ■ there it stood at one week. Here, by par
The single remaining inquiry is, whether the affidavit has not upset the case otherwise made out, by admitting the unqualified receipt of rent after notice to quit had been given. Had that been stated as a conditional or special receipt of rent, in terms saving and reserving all rights under the notice, clearly the latter would have remained good; for the landlord ought to have his rent for the wrongful occupation, or rather as it would then stand, his damages, for he would" decline receiving it as rent eo nomine. But that is not this case. The affidavit says rent was received monthly, up to the 1st of June. Was this a waiver of the notice to quit? I think it was. The very point was held in Goodright, ex dem. Charter, v. Cordwent, 6 T. R. 219, 220, approved by Woodworth, J., in Jackson, ex dem. Norton, v. Sheldon, 5 Cowen, 448, 455. It is said that the receipt of rent was an equivocal act, to be left to the jury ; and they are to pronounce whether it was intended as a waiver and a continuance of the tenancy for another month. That is true, provided there be a case for the jury. Lord Mansfield did so in Doe, ex dem. Cheny, v. Balten, 1 Cowp. 243. He first expresses an opinion generally, that the intent of the parties is to go to the jury; but he afterwards assumes that a proper case must be made out for them. At page 245, he says, speaking of the landlord : “ This circumstance,” (the payment of rent) “ it is insisted is in fact a declaration on his (the landlord’s) part, that he departs from the notice he had given, and is an acknowledgment that he still considers the defendant as his tenant. But let us suppose that the landlord had accepted this rent under terms, or made an express declaration that he did not mean to waive the no
But what is the case at bar ? It is left by the statute to be made out by the plaintiff’s own affidavit. He shows a tenancy from month to month, a notice to quit expired, and then a general receipt of rent; and he will not himself say under oath that he did not mean by that act to continue the tenancy still on for another month. The statute giving this summary proceeding allows the affidavit to come in as a plaint or declaration. 2 R. S. 422, § 28, 9. The landlord may make oath of the facts which authorize the removal of
Proceedings reversed.