66 Barb. 498 | N.Y. Sup. Ct. | 1873
By the Court,
The second year under the lease expired on the 31st of March, 1870, and the plaintiff was entitled to the possession of his property. But the defendant was not a wrongdoer in keeping possession of it after that day, unless it was demanded by the plaintiff. There were horses and cattle to be fed, the other property to be cared for and protected, and it was lawful for' the defendant to feed the cattle and take care of the whole property, until it was called for; unless he had given notice to the plaintiff that he must resume possession immediately on the termination of the lease. It follows that before an action could be maintained against the tenant for unlawfully detaining said property, a demand must be made.
By section 99 of the Code, an action is commenced when the summons is served, and to prevent the running of the statute of limitations it is commenced by delivery of the summons to the sheriff with intent to have it served,. (Knight v. Beach, 7 Abb., N. S., 241. Kerr v. Mount, 28 N. Y. 659.) This being so, the demand was before suit commenced, and was sufficient.
The objection of the defendant’s counsel, that the affidavit required by the Code in this class of actions cannot be made until after a demand, would be unanswerable if it appeared, on a motion to set aside the proceedings, that no demand was in fact made before the affidavit was sworn to. But, on the trial, the court will not enter into an investigation to ascertain whether the preliminary papers are correct. It is then too late to-raise that question. If a demand is proved, on the trial, to have been made before suit brought, that is all that is required.
The question now is, whether the parties did not consent to the extension ? The lease expired with the first year. There is no evidence before us that any new agreement was made between the parties, and it is agreed that the defendant occupied one year 'more. If there •was no new agreement the tenant will be presumed to be in possession under- the lease; especially as the lease contemplated an extension, should the parties agree to extend the term.
In the absence of all evidence as to a new leasing, the presumption is that the term was extended by consent, for two years longer, and that term had not terminated when this suit was brought.
The judgment record, in the proceedings to review by certiorari the summary proceedings to remove the defendant from the farm, was put in evidence to show that the question of the defendant’s right to occupy the farm beyond the second year had been determined in favor of the plaintiff and that it was therefore res adjudicada, and not for any other purpose. The evidence contained in that record is not before us for any'other purpose. There is therefore no evidence whatever of any new agreement as to the defendant’s occupancy.
In the summary proceedings, the plaintiff in his affidavit swears that the defendant occupied the farm for the second year under an agreement continuing the lease for a year. The defendant, in his affidavit, swore that he was in under the lease for the two additional years, by the consent of the plaintiff, as provided in the lease.
It was competent for the parties to agree to extend the lease for less than two years, and if for less, the parties did not agree to the extension for two years, but it required a special agreement to be for less than two years to prevent the extension being presumptively for two.
It follows that the judgment quashing the certiorari is not a bar to the right of the defendant to insist that by the terms of the contract, and the action of the parties under it, the term was extended two years.
There must be judgment for the defendant on the verdict.
Judgment for defendant.
Mullin, Talcott and E. D. Smith, Justices.]
