
    PATRICK SHANAHAN, Plaintiff v. JOHN J. SHANAHAN, Defendant.
    
      Landlord and tenant—Election of landlord to treat tenant holding over as tenant for new term, when it accrues—Posting notice to let, not inconsistent with election to hold as tenant—Notice of election to hold as tenant (if in any event necessary) not inefficacious because given after complete removal.
    
    Where a tenant after the expiration of his lease, supposing there is no particular hurry in getting out, remains in possession of the demised premises four days after the expiration of the term, leisurely removing his goods to other premises previously hired by him, which could have been removed in a much shorter time, but giving instructions to his employee in charge, to move the things out at once, if any one from the landlord asked for the keys, Held, that these facts showed an intentional act of using the premises for a time for Ms benefit; and that the landlord had a right to elect to treat him as a tenant, upon the conditions of the first letting.
    The posting on the premises by the landlord, pending negotiations for a new term commenced before the expiration of the old one, of a bill “To Let,” and allowing it to remain after the expiration of the term, Held, not inconsistent with an election to treat the tenant, as a tenant for a new term.
    After the right of election has accrued, Held, that the giving of a notice to insist on the right (even if in any event necessary) was not inefficacious, because not given until after the tenant had completely removed.
    Before Sedgwick, Ch. J., Tritax and Dugro, JJ.
    
      Decided March 6, 1888.
    Exceptions of defendant, ordered to be heard in first instance at general term.
    The facts appear in the opinion.
    
      Charles H. Dyett, attorney, and Anthony R. Dyett of counsel for defendant, argued:
    
      I. We concede the general rule that if a tenant holds over after the expiration of his term, the landlord has his election to treat him as a trespasser or as tenant for another year, and that the tenant has no such election. Schuyler v. Smith, 51 N. Y. 309; Conway v. Starkweather, 1 Den. 113. But we contend that this holding over must be an intentional holding over, or at least an intent to take to himself the beneficial use of the premises, or against the express will of the landlord, and that a mere continuance in possession without such intention, and not against the express will of the landlord, is not such a holding over, especially where the landlord purposely remains silent and omits to demand possession or to express to the tenant his dissent to his continuance in possession in order to entrap the tenant into a tenancy for another year. The principle of the maxim “ volante non jit injuria ” applies. In all the cases on the subject, the tenant intended to hold over or continue to use and occupy the premises beneficially, intending to do so. We do not contend that the tenant if he intends to do either of these things, can escape a tenancy for another year because he did not intend to become such a tenant —that intention we concede to be immaterial and to that effect are the cases of Schuyler v. Smith, 51 N. Y. 309, and Conway v. Starkweather, 1 Den. 113. But it is the intention to hold over or to take the beneficial use of the premises in violation of the landlord’s rights, which is material, and where it exists is a wrong to the landlord. It is the tortious holding over which gives the landlord this election. Smith v. Alt, 7 Daly 492, 407; 51 N. Y. 309, supra; 1 Den. 113, supra.
    
    The leading case in this state on the subject is Conway v. Starkweather, supra, which is similar in its facts to Schuyler v. Smith, supra, which is based upon it, and the same proposition of law was involved and decided, and at page 115 the court say: “If he holds over, though for a very short period, without any unequivocal act to give his holding' the character of a trespass, he is not cafterwards at liberty to deny that he is a tenant/ if the landlord chooses to hold him to that relation.” In other words, the tenant, by holding over, commits a wrong against his landlord and is a trespasser unless the latter elect to treat him as a tenant. This necessarily implies the intent of the tenant to hold over or continue to occupy the premises beneficially, and cannot apply to a tenantwho, though remaining in possession technically, has substantially removed and never had any intention to do either to the knowledge of the landlord. In such a case his acts unequivocally indicate that, if he be a trespasser or a tenant, he is the former and not the latter. In the case at bar, it was not the intent of the defendant to hold or continue to use and occupy the premises beneficially, intending so to do. Prior to Conway v. Starkweather, supra, decided in 1845, no case can be found in this state containing the doctrine there laid down. In Taylor's Land and Ten. (Ed. of 1844), no such doctrine is stated. But at page five the author says: “ If a tenant for years holds over after the expiration of his term, with the landlord’s consent, it implies a tacit renovation of the contract for another year.” Citing 1 T. R. 159; 15 Johns 505; 4 Cow. 350, the last two of which are cited in Conway v. Starkweather. In Conway v. Starkweather the only cases cited, either by the court or by counsel for the landlord, arguendo, are the following: Sherwood v. Phillips, 13 Wen. 479, in which the lease was for two years and the tenant occupied the premises for nine years, without any new agreement. Bradley v. Covell, 4 Cow. 349, in which the only question was whether the tenant holding over should pay the same rent or what the premises were worth, and the court held he should pay the same rent. Doe v. Bell, 5 Term Rep. 471, in which all that the court says on this subject is: “ So where a tenant holds over after the expiration of his term, without any new contract he holds upon the former terms.”
    II. The court erred in not submitting the question to the jury whether the plaintiff continuing to offer the premises to let after the first of May, and finally letting them is not evidence that the plaintiff did not consider the defendant as his tenant after the first of May.
    III. The court erred in refusing to hold that the plaintiff not having given the defendant notice of his intention to hold him as a tenant until after the defendant had entirely removed from the premises, it was too late to do so. If the defendant did hold over within the meaning of the rule, it was presumptively a tortious act and he was a trespasser if the plaintiff made no election. The election was necessary only to create the new tenancy. It is a settled and elementary rule that where a party has an election he must not dally with his rights and Avait to make up his mind, he must act promptly.
    
      Hornblower & Byrne, attorneys, and James Byrne of counsel, for plaintiff, argued:
    I. Where a tenant holds over after the expiration of his term the law will imply an agreement to hold over a yea,r upon the terms of the prior lease. Schuyler v. Smith, 51 N. Y. 309; Conway v. Starkweather, 1 Den. 113 ; Langarar v. Smith, 75 N. Y. 205; Witt v. Mayor, 5 Robt. 248; S. C., 6 Robt. 441; Philips v. Fogarty, Daily Reg. Feb. 21, 1884. Opinion of McAdam, C. J.
    II. Defendant asked to go to the jury Upon the question whether the defendant did hold over after the expiration of his term.
    In view of defendant’s oavh testimony that he did not finish moving out till the 4th of May, we have some difficulty in imagining Avhat plaintiff means by this request. Possibly he means that inasmuch as he only held over to remove his goods, he didn’t hold over at all. This claim, howeA’er, Avas passed upon in Witt v. Mayor, supra.
    
    III. Defendant also asked to go to the jury, “ upon the question whether the defendant intended to hold over after the expiration of his term.” But it has been held time and again that the intention of the tenant has nothing to do with the question. Schuyler v. Smith, supra ; Conway v. Starkweather, supra ; Witt v. Mayor, supra.
    
    IV. Defendant asked to go to the jury also upon the question whether the landlord acted in good faith in keeping away from the premises and not notifying the defendant that he intended to hold him. Plaintiff owed no duty to defendant. There was no reason why plaintiff should have gone to the store on the first or second of May. His rent had been paid for April in advance. He had no reason to suppose defendant would hold over, and it was defendant’s business to send the keys to him. Moreover, the law notified defendant that if he held over he was liable to he treated as a tenant.
    V. Defendant asked to go to the jury upon the question whether the plaintiff continuing to offer the premises to let after the first of May, and finally letting them, is not evidence that the plaintiff did not consider the defendant as his tenant after the first of May. “A surrender of the premises by the tenant and an acceptance by plaintiff, or an eviction after the minute that this first month’s rent became payable, would be no defense to this action.” Defendant’s idea probably is that there is some inconsistency in plaintiff’s action in electing to treat defendant as a tenant and afterwards trying to relet the premises. There is no inconsistency in his conduct. When defendant refused to pay the rent due the 1st of May and claimed that he was not bound to pay, it was not merely plaintiff’s right, but it was his duty, to let the' premises and to credit defendant with whatever rent was received. Winant v. Stanley.
    YI. The defendant’s claim that notice should have been given defendant of plaintiff’s intention to hold him as a tenant before defendant had removed from the premises is utterly unfounded. As we have said before, plaintiff was under no obligation to serve any notice on defendant. No such notice was served in any of the cases we have cited. Plaintiff’s only object was to make his intention definite and clear and to prevent defendant claiming at some future time that plaintiff had told him orally that he was a trespasser.
   By the Court.—Sedgwick, Ch. J.

The defendant had been the tenant of the plaintiff for a term of one year that expired on May 1, 1887. The plaintiff sued for one month’s rent for the month from May to June, in 1887, on the claim that after the expiration of the term, the defendant had continued in possession of the premises, and by election of the plaintiff had become his tenant for a renewed term of one year. The rent under the first letting was payable in advance. The rent in question was claimed to be payable in advance on the first of May, and there is no dispute as to this, if the defendant was liable for rent at all.

The defendant’s testimony as a witness in the case, shows that there was in the fact of holding over by him, the ground of liability Avhich exists in such cases. Before May 1st, he had hired another store. May 1st was a Sunday. On May 2d he. moved partly from the premises. He did not suppose there was any particular hurry in getting out. On the morning of the 3d he was ill and left the place, instructing his book-keeper to give ■ the keys to the landlord, if he came, and to move the things out at once if anybody from the landlord asked for the keys. The book-keeper referred to, testified that beginning from afternoon of May 2d, two days were occupied in removing the goods and fixtures, at the same time insisting that the contents of the store might have been removed in a much shorter time.

There is here an intentional act of using for a time, for the plaintiff’s benefit, premises belonging to the landlord. The law empowers the landlord to treat this use during this time, as the use of defendant as a tenant, and on the conditions of the first letting. There is not in the facts, any unavoidable delay in moving. The delay was intentional, the use of the premises was intentional, and there was no intention to remove at the end of the first year. There was an intention to remove after the lapse of a certain time, that would be convenient to the defendant.

It is argued however, that the plaintiff, upon the term ending, and through the time the defendant remained, expressed or made his election not to treat the defendant as tenant; or that it was a question for the jury of whether the plaintiff had not made such an election. The fact on which the defendant bases this is, that before the term had ended, and after the parties to this action had failed to agree for a new term, the plaintiff posted upon the building of wdiich the premises were a part, a bill i£ To Let, etc.” After May 1, the plaintiff allowed this bill to remain where it had been posted.

In view of this state of facts it is not necessary to say more than that the full significance of the bill being posted was not inconsistent with the defendant becoming a tenant, through his holding over, as it would not be with any other person becoming a tenant on an expressed agreement. In law, the holding over was as to the landlord, the tenant’s offer to become tenant for another year. When the offer was accepted, the bill would have no further operation. The posting of the bill and suffering it to remain, was certainly not an election to treat the holding over as a trespass.

An exception to be considered is to the court refusing to hold that the plaintiff not having given the defendant notice of his intention to hold him as a tenant, until after the defendant had entirely removed from the premises, it was too late to do so.

Of course it could not be held that the landlord must give express notice of election, at some point of time when the actual occupation continued, or at the exact point of time when it ceased. No act of removal would alter the right of the landlord based upon the earlier occupation, nor would it alter the character of the occupation, while it endured. An express notice would not be inefficacious, therefore, because given after the actual occupation had been ended. In this case notice was prompt. There is no intention to intimate that express notice was necessary, or that prompt notice is required by law.

I am of opinion that the defendant’s exceptions should he overruled, and that the plaintiff should have judgment on the verdict with costs.

Truax and Dugro, JJ. concurred.  