
    Hoffman v. Van Allen
    (New York Common Pleas
    General Term,
    March, 1893.)
    In a summary proceeding to dispossess a tenant for holding over it appeared that the lease was an oral one “ from month to month so long as he would pay the rent.” Held, that the qualifying words made the term of leasing indefinite and entitled the tenant to retain possession so long as he paid the rent or until he received a month’s notice to quit.
    Appeal from final order in a summary proceeding to dispossess a tenant for holding over. A month’s notice to quit was not given.
    
      Julius Meiderman, for defendant (appellant).
    
      John McMahon, for plaintiff (respondent).
   Pryor, J.

In the order before us, we have an instance of the “ injustice and oppression ” which Judge Bronson apprehended from summary proceedings unless they be “ carefully watched.” Hill v. Stocking, 6 Hill, 314, 318.

The petition alleges a verbal letting on or about the 1st of November, 1892, “ for the term of one month.” The proof was of an oral lease, in April, from month to month so long as he would pay the rent.” The evidence failed to sustain the petition. Romeyn v. Sickles, 108 N. Y. 650.

Waiving the discrepancy between the pleading and proof,' still it appears the petitioner miscarried in making a case for an order of dispossession.

As to the notice requisite in summary proceedings, the distinction is between tenancies for a month, and tenancies from month to month; in the former no notice being necessary, while in the latter the formal notice is indispensable. Wilson v. Taylor, 8 Daly, 256; Geiger v. Braun, 6 id. 506; Anderson v. Prindle, 23 Wend. 616.

Assuming, as held in some cases (Ludington v. Garlock, 9 N. Y. Supp. 24, and citations), that notice he not requisite in simple tenancies from month to month, here was something more; namely, a letting from month to month “ so long as the rent was paid.” These qualifying words, in effect, make the term indefinite and entitle the tenant to hold so long as he pays the rent, or until he receives a month’s notice to quit. The order reversed with costs, and restitution directed.

Bischoef, J., concurs.

Judgment accordingly.  