
    Abraham G. Jennings, Resp’t, v. Denis McCarthy, App’lt.
    
      (New York, Common Pleas, General Term,
    
    
      Filed November 4, 1891.)
    
    1. Summary proceedings—Master and servant.
    Plaintiff employed defendant to take care of certain houses, let, repair and collect rent, for which he was to receive certain commissions and have the use of a floor in one. A t the end of three months the arrangement was terminated, but defendant remained in possession of the floor occupied by him for six months thereafter, and three after notice to quit. Held, that the question whether he was a tenant or servant of plaintiff was properly submitted to the jury.
    2. Same.
    With the termination of the employment the servant’s right to occupy the master’s premises also terminates, and the master has the right to repossess himself thereof; and if the servant remains in possession without molestation it is presumptively with the master’s consent, and if continued beyond a period sufficient to enable the former servant conveniently to remove, such possession is converted into a tenancy at will, determinable by thirty days’ notice.
    3. Same—Tenancy at will.
    An agreement to occupy at the will of either party may be attended with uncertainty of duration, but specifies none the less the time for which it shall continue, and the statute relating to leases in the city of New York cannot apply.
    Appeal from a final order of the ninth district court, awarding possession to the landlord in summary proceedings for the recovery of the possession of demised premises, upon the ground of the alleged expiration of the term.
    
      A. Prentice, for resp’t; Johnston & Johnston, for app’lt.
   Bischoff, J.

About December 15, 1888, the parties to this proceeding entered into an agreement in writing whereby McCarthy assumed the care of Jenning’s houses, Eos. 1603 and 1605 Lexington avenue, in the city of Eew York, including the letting and repairing thereof and the collection of rents. In consideration of the services to be performed by McCarthy, Jennings agreed to pay him a certain rate of commissions on the amount of rents collected, to make allowance of a specified yearly sum for repairs, to furnish him with the ground floor of one of the houses for janitor’s apartments and to give him the gratuitous use of another floor. Eo time was fixed for which this agreement was to endure, and under it McCarthy entered into the possession of the apartments from which he was sought to be removed. It continued, however, by the voluntary performance of the parties for about three months, and in June, 1889, Jennings notified McCarthy in writing that he had elected to terminate the same. This notice included a demand for the surrender of the possession of the apartments occupied by McCarthy, and was served upon him about three months prior to the institution of proceedings to recover possession and about three months after his employment was discontinued, since which time McCarthy had remained in possession.

Mo sufficient proof of the service of this notice was made upon the trial, but as the allegation of the petition respecting its service was unchallenged by the answer, the fact of such service must be taken as admitted. Norsworthy v. Bryan, 33 Barb., 153 ; People v. Teed, 48 id., 424; McGuire v. Ulrich, 2 Abb., 28.

Upon the foregoing facts the trial justice substantially charged the jury that if they found McCarthy’s possession to be that of a servant their verdict must be in his favor, but if they found his possession to be with the consent of Jennings, and that the relation of master and servant was not subsisting between them, that then the facts established a tenancy at will and Jennings was entitled to recover possession and the verdict should be accordingly. _ • _

_ _ Mo exception was taken to the charge in this form, and the jury having found for the petitioner the appellant urges, as grounds for reversal, that the facts fail to support the verdict, and that the relation between the parties being that of master and servant, and not of landlord and tenant, the trial court was without jurisdiction.

We are of the opinion that the case was properly disposed of in the court below. Whether McCarthy’s occupancy was that of servant or tenant was a question of fact, and therefore properly submitted to the jury.

The facts warranted an inference of consent on the part of Jennings to the continued possession by McCarthy after discontinuance of his employment, and if such consent was found to have •existed, then by operation of law McCarthy’s possession was converted into a tenancy at will determinable under the statute by a previous notice of thirty days, B. S., vol 3, p. 2201, § 7, Banks Bros., 7th ed, and he was subject to removal in summary proceedings to recover possession. Code of Civ. Pro., § 2231.

Substantially the only issue of fact upon the trial was as to whether or not Jennings had consented to McCarthy’s continued possession after his employment was determined, and though there may be no evidence whatever of an express consent it is sufficiently established if inferable from the surrounding circumstances proved.

We may agree with the contention of counsel for appellant that the agreement of December 15, 1888, created the relation of master and servant between the parties, and that as the servant’s possession is that of his master, the relation of landlord and tenant cannot be said to have subsisted respecting the premises occupied by the servant under it while the employment continued in its vitality. With the termination however of the employment, whether by the servant’s abandonment thereof or by his discharge therefrom, the servant’s right to occupy his master’s premises is also determined, and the master then has a present right to repossess himself thereof and to use all necessary force to eject the servant therefrom. Haywood v. Miller, 3 Hill, 90. If the servant continues in possession without molestation, it is presumptively with the master’s consent, and if such possession endures beyond the limit of a period of time sufficient to enable the former servant conveniently to remove, such possession is converted into a tenancy at will. Kerrains v. People, 60 N. Y., 221; Bristor v. Burr et al., 12 N. Y. State Rep., 638.

In the present case the former servant continued in possession for nearly three months after his employment was abandoned or discontinued and before the service of a notice upon him to quit and surrender the possession of the apartments occupied by him, and for three further months thereafter before proceedings for his removal under the statute were instituted, and as under the ruling of the court of appeals in Kerrains v. People, above cited, the master’s consent to the holding over of the former servant may be implied or inferred from the mere fact of delay for a considerable time after the employment has come to an end by the former servant to remove, we are compelled to assume that the jury in rendering their verdict for the petitioner did find the fact of such consent.

The conclusion reached by us that there existed between the parties at the time of the institution of the proceedings to recover possession a tenancy at will necessarily also refutes the appellant’s remaining proposition, that as there was no evidence of an express agreement particularly specifying the duration of the tenant’s right of occupancy, if a tenancy was found to have existed, it must by force of the statute relating to leases of real property in the city of New York, R. S., vol. 3, p. 2200, § 1, Banks Bros. 7th ed., be construed to continue until the 1st day of May next succeeding. An agreement to occupy at the will of either party thereto may be attended with uncertainty of duration, but specifies, none the less, the time for which it shall continue, and the statute referred to cannot for that reason be said to apply. Hart v. McConnell, 5 N. Y. State Rep., 900.

The order appealed from should be affirmed, with costs.

Bookstaveb, J., concurs.  