
    Catherine Mitchell, Appellant, v. Harry Clary, Respondent.
    (Supreme Court, Appellate Term,
    June, 1897.)
    Landlord and tenant—Holding over — notice of increased rent — Service.
    The plaintiff’s assignor, John F. Dowd, and the defendant made a contract whereby the defendant was to exchange certain lots for the house of Dowd. Pending a search of the title and on September 14th, Dowd allowed the defendant to occupy his house until September 30th on the payment of the nominal rent of $1, but, as the time for closing the exchange was adjourned, Dowd again rented the house to the defendant until October 15th, for $1. On the last named date the contract was not closed, and Dowd served a notice on the wife of the defendant, that the tenancy had expired, and that, if the defendant remained on the premises thereafter, the rent would be $27.50 a month.
    
      The defendant did not receive this notice until October 16th, and three days later abandoned the premises. Held, that the assignor of Dowd could not recover one month’s rent from October 15th to November 15th, on the theory that the defendant had held over until October 19th. That as the notice relative to .-increased rent did not reach the - defendant until' October 16th, one day after a new term at a rent of $1 might be said to have .commenced, the notice came too late to effect an increase in the rent,- and further, that the notice was insufficient because it was not served upon the defendant personally, but was served upon his wife.
    Appeal- by plaintiff-from judgment of the Hinth District Court.
    Langbein Brothers & Langbein, for appellant.
    W. G. Mulligan, for respondent.
   McAdam, J.

The plaintiff’s assignor, "John F. Dowd, and the defendant, on September 4, 1896, made, a contract whereby the defendant was to exchange certain lots owned by him for Dowd’s ' house, Ho. 695 East One Hundred and Eighty-third street.

Pending the searching of the title,, and on September 14th, the defendant was allowed to. move into Dowd’s- house on payment of. the nominal rent of $10 up to September 30th. The time for closing the exchange was adjourned, and the premises were again rented to the defendant until October 15th for $1. On the last named date the contract was not closed, and Dowd then served upon the. defendant’s wife a notice that the tenancy had expired, and if the tenant remained on -the premises thereafter his rental would be $27.50 a month. The tenant received this notice Friday, October 16th," and proceeded to find another place.' On Sunday he prepared to move, and on . Monday, October 19th, he abandoned possession.

. The action is to recover $27.50 as rent from October 15th to November 15th, on the theory that the tenant by continuing in possession until October 19th impliedly assented to pay the increased rent specified in the • notice. Despard v. Walbridge, 15 N. Y. 374; Mack v. Burt, 5 Hun, 28. In the absence of such ’notice a tenant holding over after the expiration of his term" is deemed, at the option of the landlord, to hold over at the same rent he had previously paid. Mack v. Burt, supra; Schuyler v. Smith, 51 N. Y. 309,

In this case the notice did not reach the tenant until Friday, October 16th, after the new term at the former rent had actually commenced, and the landlord’s rights in respect thereto had become legally- fixed; so that it came too late to effect the increase in rental demanded by- the landlord. The notice could not put the tenant to an election to remain in or move out until he received it; for when the law requires a notice to be given and does not prescribe the mode of service, it must as a rule be served personally. Wade on Notice, § 1334; Rathbun v. Acker, 18 Barb. 393; McDermott v. Board, 25 id. 635.

The letting was part of the scheme by which the exchange of properties was to be effected, and must be construed with reference to it. . Dowd testified that he told the defendant he did not care to let him move into the house until he became the owner, as it might complicate matters somewhat, but that he finally consented to let him in at the nominal rent agreed upon.

The plaintiff’s assignor claimed that the exchange was abandoned about October 1st, while the defendant testified that it was not given up until he received the notice as to increased rent; At all events it is clear that the parties contemplated that the defendant was to become the owner of the house, and that the rent fixed was merely nominal, to charge the defendant’s possession as that of a tenant rather than one of a vendee in possession.

Under the circumstances the notice to charge the defendant with increased rent should have been served before the new term commenced, that the defendant by continuing his possession into the new term might be held to have acquiesced in the claim made by the landlord. But the notice was not served until after the new term commenced, and within a reasonable time after receiving it the defendant moved out, thereby manifesting his determination not to assent to the terms imposed.

We think the plaintiff failed to establish any agreement upon the part of the defendant to pay the increased rent, and that the justice properly found;for the defendant.

The sum tendered into court, $6.50, was sufficient to cover all liability on the part of the defendant for his occupation of the premises together with the taxable costs, and the sum tendered at once became the property of the plaintiff. Cow. Tr. (Kingsley’s ed.), §1151. .

It follows that the judgment must be affirmed, with costs.

Bischoff, J., concur.

Judgment affirmed, with costs.  