
    Emma M. Morgan, Resp’t, v. Daniel W. Powers et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 27, 1894.)
    
    Landlord and tenant—Notice to quit.
    The giving of a second notice to quit by a landlord to a tenant at will, after the expiration of a prior notice to quit, waives his right to proceed under the first notice.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court
    
      Henry G. Danforth, for app’lts; P. Chamberlain, Jr., for resp’t.
   Lewis, J.

The defendant Daniel W. Powers, in the year 1885, erected upon land then owned by his wife, on Prince street, in the city of Rochester, a dwelling house, and his son William C. Powers, by the consent of his father, commenced living in the house with his family, consisting of his wife and infant child. The plaintiff, who is the stepmother of Mrs. William C. Powers, became a member of their family, and continued to live there until the 16th day of August, 1893. William C. Powers left his home and family in June, 1892, and, so far as appears, has never returned. The family seems to have occupied the house with the understanding that no rent was to be paid, and none was paid. The defendant Powers became the owner of the premises in the month of February, 1893 ; and on the 24th day of June, thereafter, he caused to be served upon the occupants of the house a written notice, as follows:

“ To Mr. William C. Powers, to Mrs. William 0. Powers, to Mrs. Emma Morgan: You are directed to leave the house No. 6 Prince street, in the city of Rochester, on or before Monday, the third day of-July next.
“ Dated June 24, 1893.
“Yours, etc., D. W. Powers, Owner of House.”

Mrs. William C. Powers, with her mother and child, continued in possession of the premises, paying no attention to the notice. Thereafter, and on the seventh day of August, 1893, the defendant Powers caused to be served npon the occupants óf the house a second notice, of which the following is a copy:

“ To Mr. William C. Powers, Mrs. William C. Powers (alias Del Powers), Mrs. Emma Morgan : You will please take notice that you are requested to. surrender and deliver up to me possession of the house and premises No. 6 Prince street, in the city of Rochester, N. Y., and to remove therefrom, on or before the 9th day of September, 1893, at 12 o’clock noon.

“Dated Rochester, N. Y, August 7, 1893. D. W. Powers.”

On the 16th day of August, while Mrs. Powers and the plaintiff were temporarily absent from the house, the defendant Charles Dare unlocked the front door of the. house, by means of a key which had been delivered to him by the defendant Powers; and, by his direction, he took possession of the house, and locked the doors. The plaintiff and Mrs. William C. Powers returned to the house, and, being refused admission, they attempted to break in the doors, and the plaintiff finally entered the house through a window, by means of a ladder. The defendants Dare, King, and Heath, by direction of the defendant Powers, forcibly removed the plaintiff from the house, and, in so doing, injured her person to some extent; and thereupon she brought this action against the defendants, and recovered a verdict of $2,500 damages ; and from the judgment entered upon the verdict, and from the order denying.the defendant’s motion for a new trial, this appeal was taken.

The trial court instructed the jury that the defendants had no light to take possession of the house at the time they did, and he further instructed them that the only question for their consideration was one of damages ; and, if this direction was correct, the judgment, we think, should be affirmed. The appellants contend that the damages, in any event, are excessive. If the defendants were wrongdoers in entering the house and ejecting the plaintiff therefrom, the damages found by the jury cannot be said to be so excessive as to warrant us in setting the verdict aside. The evidence as to the extent'of force used to eject the plaintiff and the injuries actually sustained by her was very conflicting. The plaintiff’s evidence tended to show that she was very severely and seriously injured; that, in consequence of her injuries, she was confined to-her bed for a number of weeks ; and that her injuries were likely to be permanent. The defendants King, Heath, and Dare gave a very different account of the transaction. Their evidence tended to show that the plaintiff was removed from the house carefully, and that her injuries were slight, and resulted solely from her struggles iu resisting their attempts to remove h«r from the house. The jury believed the plaintiff’s account of the transaction.

The serious question is as to the effect .of the second notice. Mrs. Powers was in possession of the house as a tenant at will or by sufferance of the defendant Powers. She had the right to remain there until her tenancy was determined by a notice to surrender possession. It could be terminated by the landlord’s.giving a written notice of one month, requiring her to remove. At the expiration of the month’s notice, the landlord had the right to re-enter or maintain ejectment, or proceed in the manner prescribed by law to remove the occupants from the possession of the house. 4 Rev. St. (8th Ed) p. 2457, § 9. The first notice was informal, as it required the occupants to vacate the premises on the 3d day of July following the notice, on the 24th of June. Notwithstanding such defect, had the defendant Powers allowed a month to expire after service of the notice, he would have been in a position to re-enter or obtain possession of his premises. If a time be specified in a notice served upon a tenant which elapses within less than a month from the time of service of the notice, it will not vitiate the notice. It is sufficient if the tenant has 30 days’ notice in writing of the intention of the landlord to terminate the tenancy. Burns v. Bryant, 31 N. Y. 453. The landlord here gave the second notice on the 7th of August, calling upon the tenant to surrender possession on the 9th of September following; and, before the expiration of that notice, he re-entered the house, availing himself of the absence of the occupants. The manner in which he re-entered was not forcible. Bliss v. Johnson, 73 N. Y. 534.

So we come to*the question whether the tenancy was, in effect, terminated at the time of the re-entry, and the decision of that question depends upon the effect to be given to the second notice. It cannot admit of much doubt that the defendant Powers, at the time of giving the second notice, had concluded that the first one was defective. There does not seem to be any reason for serving the second notice, except upon the hypothesis that the first one was considered fatally defective, and that it could not be used as the basis of dispossessing the occupant. He evidently afterwards concluded that he had a right to re enter after the expiration of one month from the time of giving the first notice. Did the defendant waive his rights to proceed under the first notice by giving the subsequent one? It has been held that giving a subsequent notice after the expiration of the first is, in effect, an admission that a tenancy still subsists, and is a waiver of the first notice. Tayl. Landl. & Ten. § 485 ; Brierly v. Palmer, 16 East, 53. Upon receiving the second notice, the tenant unquestionably had the right to suppose that the landlord had waived the first notice, and that the tenancy would continue until the time fixed in the last notice, and act accordingly. There cannot be any doubt as to the intent of the landlord in giving the second notice, and it was properly construed by the court. It is a case where the land- ' lord mistook his legal rights, and, in forcibly removing the plaintiff from the house, the defendants became trespassers, and were liable to her for such damage as she sustained by reason of their assault. The judgment and order appealed from should be affirmed. All concur.  