
    Coridon S. Thompson, as Executor, etc., Resp’t, v. George Chick, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 28, 1895.)
    
    1. Appeal—Direction op verdict.
    Before the trial court is authorized to direct a verdict over the objection of the defendant, the evidence must be substantially without conflict in favor of the theory upon which the verdict is directed.
    2. Landlord and tenant—Notice.
    Where a renting is for a specified time, and the tenant holds over beyond that time with the acquiescence of the landlord and pays rent, a new term is implied equal to the original term; and upon the expiration of such new term, the tenant can abandon the premises without notice,
    3. Same.
    Where a tenant is in possession under an indefinite monthly renting and
    ■ pays his rent in advance, the most that can be inferred as to any agreement on the subject of notice to terminate is that reasonable notice should be . given, and the failure of the landlord to object to the sufficiency of the notice when it is given, and until after the tenant had moved out and tendered the key, is a waiver of regular notice.
    4. Same—Rent in advance.
    The right of the landlord to notice from the tenant of his intention to terminate a lease which provided for the payment of a certain, amount per month for an indefinite period, is not affected by the fact that the rent was not paid in advance, where it was paid for specific months.
    Appeal from a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial.
    O. H. Hopkins, for app’lt; Mr. Stone, for resp’t.
   WARD, J.

—This action originated in justice’s cdurt of Wyoming county, where the plaintiff recovered a judgment of $93.60 and costs, for rent claimed by the plaintiff of the defendant upon a verbal contract for the renting of premises consisting of a house and lot in Attica, Wyoming county, N. Y. The defendant appealed to the county court, and a new trial was'had before a jury. The jury being unable to agree upon a verdict, the court directed a verdict for the plaintiff, for the amount of his claim; and the defendant appealed from the judgment entered upon that verdict, and bring the case before us.

The plaintiff’s evidence upon the trial in the county court was to the effect that a few days prior to March 15, 1891, the parties met, and agreed that the plaintiff should lease the house and lot to the defendant for a y iar commencing the 15th day of March, and to continue for a year, the rent to be payable monthly; at $10 a month; that, under this agreement, the defendant entered into Eossession of the premises just prior to the 15th of March, 1891. defendant paid $10 on the rent on the 27th of April, another $10' on June 1st, and $10 after defendant vacated the premises. The defendant moved out of the premises about the 1st of June. The plaintiff was going by the premises, and saw them moving out, and defendant told him they were moving to another place. Plaintiff said it did not make any difference to him how many houses the defendant rented, as he should hold him for the rent for the balance of the year. About a week after the defendant moved out, the plaintiff found that the key to the premises had been left with his wife, with the notice that the defendant was going to move from the premises. Plaintiff refused to receive the key.

The plaintiff’s claim for rent was. for the balance of the year, or for nine months, commencing with June 15, 1891. The defendant’s evidence, in which he was sustained by two witnesses, was to the effect that the ageement simply was that he was to pay $10 a month for the premises; was to commence on March 15, 1891; that there was nothing said that the defendant should hire the premises for a year, and "pay $10 monthly, or anything of that kind; he took possession, and vacated the premises, and paid the rent, substantially as the plaintiff's evidence disclosed, having left the key of the house with the plaintiff’s wife at the time he vacated the premises. There was not conflict in the evidence as to the notice or knowledge that the plaintiff had of the defendant’s moving from the premises, about the 1st of June. The learned trial judge directed a verdict for the plaintiff, for the reason that 30 days’ notice had not been given by the defendant of his intention to vacate the premises, and therefore the term had ceased, and the plaintiff could recover for the balance of the year..

Before the court was authorized to direct a verdict .over the objection of the defendant, the evidence must be substantially without conflict in favor of the theory upon which' the verdict was directed. ' Whether the contract was for a year, the rent to be payable monthly, or whether it was simply a contract for the hiring of a month, and renewal of monthly terms by the payment of monthly rents thereafter,with the acquiescence of the parties, was a question for the jury; and in considering that question, we are to give full force to the defendant’s evidence, and take as favqrable a view of it as the evidence will reasonably "permit. Without expressing an opinion as to the full force of this evidence, we are of opinion that the defendant’s evidence did create a question of fact, which should have been submitted to the jury. We shall not attempt to analyze at length the numerous cases upon the subject of tenancies where the termination thereof has been held dependent or not upon notice. The examination of a few leading cases will suffice.

In Gibbons v. Dayton, 4 Hun, 451, in speaking of a case where the rent was payable monthly and in advance, the court'say:

“It is very clear that the tenancy of the intestate was from month to month. Neither party was bound to give any notice to the other in order to terminate the tenancy at the expiration of any month. The landlord could have removed the tenant by summary proceedings, without notice; so the tenant could have lawfully left the premises at the expiration of any month without notice, and without being bound to pay further rent.”

In Adams v. City of Cohoes, 25 St. Rep. 523, where a tenant, who had occupied the demised premises for several years after the termination of his lease, paid rent semi-annually, it was held that the payment of the rent after the experiation of the term created a new terra, expiring at the close of the current year, and requiring no notice for its determination; and the principle there laid down would seem to be that where a renting is for a specific time, and the tenant holds over beyond that time with the acquiescence of the landlord, and pays rent, a new term is implied equal to the original term; and, upon the expiration of such new term, the tenant can abandon the premises without notice. This case was affirmed in the court of appeals (127 N. Y. 175; 38 St. Rep. 678), and the position of this case seems to be sustained by Park v. Castle, 19 How. Prac. 29 ; Austin v. Strong, 47 N. Y. 679 ; Nichols v. Williams, 8 Cow. 13 ; People v. Goelet, 64 Barb. 476; People v. Schackno, 48 Barb. 551.

The court of appeals, in Adams v. City of Cohoes, at page 183, 127 N. Y., and 38 St. Rep. 678, cite with approval Ludington v. Garlock, 29 St. Rep. 600. That case was like the one at bar in its leading features. Ludington sued Garlock to recover a month’s rent, from October 20 to November 20, 1888. On the 20th of April, 1888, Garlock was in possession of the rented premises, under a parol agreement to pay fifteen dollars a month rent, and at that time Ludington required him to pay eighteen dollars per month if he continued to occupy the premises longer than May 1st, as his month would be up the 20th of April. The contract seems to have been to pay -the rent in advance. About the 20th of each month, June, July, August, and September, Garlock paid the monthly rent of eighteen dollars; and on October 19th or 20th the defendant’s boy came to the office of the plaintiff’s agent, laid the key to the premises down before him, and said that the defendant had moved out, and surrendered the premises, and there was the key. The agent told the boy that he would not accept the key, but would hold the defendant for another month’s rent. About ten days before that, the agent had been told by the defendant’s father-in-law that the defendant had got another house, and was going to move, and the defendant vacated the premises on the 19th or 20th of October. The court held, upon this state of facts, that where a defendant is in possession under an indefinite montlv renting, and pays his rent in advance, the most that can be inferred as to any agreement on the subject of notice to terminate is that reasonable notice should be given, and that the failure of the landlord to object to the sufficiency of the notice when it was given, and until after the tenant had moved out and tendered the key» was a waiver of regular notice. Judge Merwin who pronounced the opinion in that case, makes a careful examination of the leading cases upon the subject, and concludes :

u When the defendant paid the month’s rent, there became a fixed and definite tenancy for a month. There was no agreement by the defendant to take the premises for any longer period. If, however, he held over or paid for any month, the tenancy was for that time renewed, and, as renewed, expired at the end of the month, unless some further action was taken.”

It is true, in the case at bar the rent for the month succeeding the first was not paid strictly in advance, but each ten dollars was paid for specific monthly periods, and accepted as such; and as to the creation of' monthly tenancies after the expiration of the first term by the payment of monthly rent, with the acquiescence of the parties, it is immaterial whether the payment be at the commencement of the month, or at a later period in the month. Then, if notice were required,, under the last case cited, the question should have been submitted to the jury as to whether such notice was a reasonable one, and whether the plaintiff 'had not waived the giving of the regular notice by failure to object to the notice as insufficient

We have reached the conclusion that it was error in the court to direct a verdict for the plaintiff. The judgment and order should be reversed, and a new trial ordered in the county court with costs to abide event All concur.  