
    The People, ex rel. Frederick Aldhouse and others vs. Peter Goelet.
    A renting of premises by the month, and which is to be from month to month, can bear but one interpretation, viz., that, to be continued, it must be renewed monthly; and to terminate the tenancy, a month’s notice is not requisite.
    aUHIS is a certiorari to review summary proceedings _ for the recovery of possession of certain premises in the Third avenue, in the city of New York, instituted by the landlord, Peter Goelet, against Aldhouse & Smith, tenants. The premises, being a store in No. 1046 Third avenue, were let to the tenants on the 1st day of August, for one month, and were again let, on the 1st day of September, for the month of September. On the 15th day of September the tenants were notified that they must remove on the 1st day of October, at the termination of the lease. The tenants refused to move, and summary proceedings for recovering possession of the premises were commenced by the landlord, on the 11th day of October, before Dennis Quinn, justice of the district court, in the city of New York, for the first district. Trial was had in said proceedings before said justice; on the 17th day of October, without a jury, and after hearing the evidence, said justice rendered judgment in favor of the landlord, that he have possession of the demised premises by reason of the expiration of the tenants’ term, and that a warrant be issued to remove the tenant and all persons from said premises, and to put the landlord into full possession.
    
      Charles Jones, for the landlord.
    I. The only question in controversy between the parties, before the justice, was whether the letting of the premises was by the month, for the month of August and for the month of September, or for a term ending on the 1st day of May, 1873. The evidence of the witness called by the landlord, and who was his agent, is that he rented the store to Aldhonse & Smith, the tenants, by the month, for August and September, at the monthly rent of $66.66, payable in advance. The rent was paid for August, as also for September, and the receipts given in each case are for the month’s rent, in accordance with the contract sworn to by this witness. The tenants, who were witnesses in them own behalf, contradict the landlord’s witness, and say they were to have possession of the premises until the 1st of May. On this conflict of testimony, the justice decided the question of fact in favor of the landlord, and his decision is conclusive.
    II. Aldhouse & Smith were not tenants at will, or entitled to notice to quit. 1. No such claim is made by them in their answering affidavit or by their evidence on the trial. It was a conceded fact that there was a definite term, and the sole question was as to the duration of that term—whether for the month of September or until the 1st of May thereafter. Upon this question the justice passed as a question of fact, and denied the tenants’ motion to dismiss the proceeding. 2. The provisions of the Revised Statutes, (1 R. 8. 744, § 1,) in relation to agreements for the occupation of lands in the city of New York, apply only to cases where the duration of the occupation is not particularly specified, and have no application to the present case. The duration of the occupation was specified, and the parties could agree for any term less than a year, as well as for a year. 3. This case does not fall within the rule laid down in Prindle v. Anderson, (19 Wend. 391, and 23 id. 616.) In that case there was a parol contract for the leasing of land for a longer term than one year, which was void by the statute of frauds. The tenant went into possession, and refused to execute the lease according to tins agreement, but remained in possession paying rent monthly, which was accepted by the landlord, and there being no specified term valid in law, it was held that he was tenant at will. The affidavit on which that proceeding was founded stated that Prindie was tenant at will or sufferance, and alleged that notice to quit had been given to him. The real question raised was as to the sufficiency of the notice, and whether it had not been waived by the acceptance of rent after it was given. 4. The affidavit in the present case was sufficient, and does not show a tenancy at will. The allegation is that the landlord rented the premises to Aldhouse & Smith, by the month, and from month to month, the last renting commencing on the 1st day of September, 1872, and ending on the 1st day of October, 1872, which said term has expired. Here is a distinct allegation of a renting for the month of September, and that the term had expired, and the evidence on the part of the landlord is to the same effect. (The People v. Shackno, 48 Barb. 551. Wiseman v. Bacon, N. Y. Com. Pleas, Gen. T., May, 1857.)
    
      Joseph Fettretch, for the relator.
    I. The court erred in denying the application of the relators for a dismissal of the proceedings before the counter-affidavit was filed, and in compelling the relators to file such affidavit, for the reason that the tenancy there alleged was nothing more than a tenancy at will or a tenancy from month to month, and as such, required a month’s notice, in writing, to be given, to terminate such tenancy. (1 R. S. 696, Edm. ed. Bradley v. Covel, 4 Cowen, 349. Prouty v. Prouty, 5 Abb. 81. Anderson v. Prindle, 23 Wend. 616. The People v. Darling, 17 N. Y. 666.) The courts of this country have used the term “tenant at will” and “tenantfrom year to year” indiscriminately. (Bradley v. Covel, 4 Cowen, 349. Prouty v. Prouty, 5 How. 81.)
    II. The justice erred in not dismissing the proceedings at the close of the testimony on the part of the respondent ; for admitting that the testimony excludes the idea of a hiring to May 1, 1873, the tenancy was either “a tenancy at will” or “ a tenancy from month to month.” If a tenancy at will, then a notice to quit was necessary, and without it the proceeding, could not be sustained. (1 R. S. 696, Edm. ed.) If “a tenancy from month to month,” then it could only have been terminated with a month’s notice to quit, expiring with the end of some month. (Anderson v. Prindle, 23 Wend. 616. The People v. Darling, 47 N. Y. 666.) So did the justice err in not dismissing the proceeding at the close of the evidence, if he was of the opinion that it was a tenancy from month to month, because a notice to quit was necessary in order to terminate such a tenancy. (See cases above cited.) There was no pretence that any notice to quit had been given.
    III. The justice erred in excluding the testimony of Morris Manheimer, one of the witnesses produced by the relators for the purpose of showing the declarations of the respondent’s agent in reference to the premises which were the subject of the proceeding. (Kasson v. Mills, 8 How. 377.)
    IY. The justice erred in deciding this to be a tenancy by the month, or from month to month ; for the testimony of the respondent’s agent shows that he rented the premises to the relators on August 1, and that the hiring was for that month only; that on September 1, or when the rent for September was paid, nothing was said about the letting or terms of hiring, wherefore the relators became tenants until May 1,1873. (1 R. S. 695, Edm. ed.) In Witt v. Mayor, &c., (5 Rob. 248,) the court say the defendants held over, and remained in possession of the premises with the assent of the owner, after the expiraration of their term; and that constituted a tenancy from year to year. In this case the hiring was for the month of August. Nothing was said after August, and the tenancy either became one from month to month, or by reason of the peculiar statute relating to the city of New York, to the 1st of May 1873. The receiving of rent for September changed the tenancy to one from month to month. (Anderson v. Prindle, 23 Wend. 616.)
    
      Y. But we are not left to presumptions as to the length of the term, for the testimony of both the relators clearly and conclusively shows that the hiring was not by the month, nor from month to month, but that they hired the premises until the 1st day of May, 1873, at the rent of $800 per annum, payable monthly, in advance. They are corroborated by the testimony of Phillip Manheimer, who testifies that “they would not be disturbed until the 1st of May.”
    YI. The proceedings should have been dismissed, because the testimony of Robinson, and Smyth, shows that during the month of September, Robinson brought Yiesing to the premises, and introduced him as the landlord of the premises, and the successor of Mr. G-oelet. Gioelet was not, therefore, entitled to the possession of the premises, and could not maintain the proceeding. (The People v. Matthews, 38 N. Y. 451.)
   By the Court, Ingraham, P. J.

The only question material to the decision of this case is, whether a renting by the month, and from month to month, was such a letting as to require a month’s notice, to terminate the contract.

There was evidence on the part of the relators by which they claimed to have a hiring until the 1st of May ensuing. As to that, there is no pretence that it entered into the contract of hiring, and was only an answer to a question put by the tenant at the time of the hiring, in which the agent said that Mr.' Groelet told him he was going to do nothing with the store or building until the 1st of May, and that until that time the tenants should have full possession. This statement is positively contradicted by Robinson, the agent. The finding of the justice is against any such contract; and whatever may be our views about it, such finding on the facts is conclusive.

Upon the question, then, whether the contract as testified to by Bobinson was a tenancy at will, there can be no doubt. He testified, that the renting was by the month, and to be from month to month. This can bear but one interpretation, viz., that, to be continued, it must be renewed monthly. The contract for August was to the 1st of September. The receipt given on the 1st of September was for rent in advance for September. It contained no agreement for extending it beyond that time, and left the contract as originally made, to be from month to month.

[First Department, General Term, at New York,

January 6, 1873.

Ingraham, Learned and Brady, Justices.]

The case of The People v. Schackcno, (48 Barb. 551,) was a stronger case for the tenant than the present. There the agreement was for one month, and for each month thereafter till the landlord wanted it; and it was held, in that case, that such a tenancy was not at will. It may be doubted whether such a contract, under the law applicable to this city, can be construed into a tenancy at will. It must either be a monthly renting, or if the duration is not specified in the letting, it continues to the 1st of May next ensuing. The present one is a contract by the month, and the decision of the justice was correct.

Judgment affirmed.  