2 Cow. 660 | N.Y. Sup. Ct. | 1824
The cases cited by the plaintiff’s counsel show, that to entitle the landlord to distrain, there must be a letting, and an agreement to pay rent—that an occupancy under an agreement for a lease at a future time is‘not sufficient. The facts in this case show an occupancy, in the first instance, under a parol demise from year to year. When the new arrangement was made, a parol agreement must have preceded the directions to Mr. Palmer to draw the lease. Though this lease was never, in fact, executed by Schuyler, yet his occupancy was either under this lease, or the parol agreement, in pursuance of which the directions were given for the lease. In either case, there was.a letting by Leggett to Schuyler, and an agreement by Schuyler to pay the rent. If the occupancy has been under the lease, then, having accepted possession under it; he takes the estate subject to the covenants and the conditions contained in it. In that case his liability exists, and also the landlord’s right to distrain. If the occupancy has been under the parol agreement, then he has held under a parol demise for seven years ; which, though it is void as a lease for the term, yet it enures as a tenancy from year to year, (Clayton v. Blakey, 8 T. R. 3,) and must regulat. the terms on which the tenancy subsists in other respects; as the rent, the time of the year when the tenant must quit, &c. (Doe v. Bell, 5 T. R. 471. Roberts on Frauds, 244, 5, 6.) Rent being due by the terms of the parol demise, the landlord’s right to distrain was perfect; and the defendant was at liberty, under the avowry in this case, to avail himself of either a parol or written lease. In my opinion, the defendant must have judgment.
New trial denied.
