
    James Simpson et al., Respondents, v. Marie Masson, Appellant.
    (New York Common Pleas—General Term,
    February, 1895.)
    An agreement by a landlord to give the tenant due notice in case he should want the premises does not change the character of a tenancy from month to month.
    Due notice to quit in the case of a tenancy from month to month is five days.
    .An affidavit of service of the notice to quit in such a case need not be attached to the petition, but such service must be proved by parol evidence.
    The fact that the original notice was served, instead of a copy, does not render the service void.
    
      Such service may be made by any one having authority from the landlord to make it; it is not necessary that it be made by a marshal or a person deputized by the justice.
    Appeal from a final order in summary proceedings in favor of the plaintiff, granted by a justice of a District Court.
    
      JYathcm Lewis, for appellant.
    
      Arthur L>. Williams, for respondent.
   Bookstaver, J.

The landlords commenced summary proceedings to recover the possession of certain premises described in the petition, alleging that the tenant was a monthly tenant. The answer denied a monthly hiring and alleged that the hiring was not by the month, but that the landlords were" to give six months’ notice before they would take "possession of the place. The appellant strenuously contends that she, having an established business, would not in the nature of things be content to hire a place from month to month. But the written lease introduced in evidence by the landlords shows beyond controversy that the .first hiring by the tenant in April, 1890, was for the term of one month only, for it expressly ' says that the hiring was for the term of one month, to commence on the 1st day of May, 1890, and end on the lit day of June, 1890, "and from month to month only thereafter at the monthly rent,” etc. There is not .a particle of evidence in the case that the tenant at any time thereafter sought or procured any change of the terms of the first agreement until May, 1894. This fact of itself overcomes the force of appellant’s contention. It shows that, whatever others might have "wished in such case, she was content with a monthly hiring.

But she contends that a new agreement was made in May, 1894, and testifies that she had a conversation with the landlords’ collecting agent relative to the length of time she could continue to occupy the premises, as she had heard, that the landlords intended tearing them down and rebuilding; and the agent said he would ascertain and communicate with her; and that thereafter he came back and stated to the defendant

that the landlords would give her six months’ notice before they would take possession of the place. And in this latter statement she is to some extent corroborated by a witness produced by her. The landlords’ witness Boss testified that the tenant “ told me in May, 1894, that she was afraid they would, pull down the building and she would have to look for another house;” that he said he didn’t know anything about it, but that he would ascertain. That he saw Mr. McCormick, who said that there was a prospect of them building this year, and if they should they would know six months beforehand, and if they did, they would give the tenant due notice. This raised a direct conflict of evidence, and it was within the province of the judge who had charge of the proceedings to determine where the truth lay; and from an examination of all the testimony on this point we think that his decision was correct, and that, instead of the landlords’ agent promising to give six months’ notice of the termination, he only promised to give due notice. It appears from the evidence that on September 21, 1894, Mr. McCormick, the landlords’ financial agent, called upon the tenant and told her that the landlords wanted the premises from the first of October. She did not vacate, and upon October twenty-third a notice to quit was served upon her, and these proceedings were thereafter duly instituted. The tenancy, as found by the judge on quite sufficient evidence, was from month to month. The statement that the landlords would give due notice did not change its character. Chapter 357, Laws of 1889, amending chapter 303, Laws of 1882, provides that at least five days’ notice to quit shall be given to a monthly tenant. Due notice is, therefore, five days’ notice. The notice was served upon October twenty-third demanding possession of the premises on November first, thereby giving eight days’ notice instead of the five required by law. Besides this, the tenant had been informed of the landlords’ wishes a month before, but refused to comply with them. The cases cited by appellant were mostly decided before the enactment of chapter 303, Laws of 1882. Manhattan Life Ins. Co. v. Gosford, 52 N. Y. St. Repr. 419; 3 Misc. Rep. 509, is not in point. Hoffman v. Van Allen, 3 Misc. Rep. 99 ; 51 N. Y. St. Repr. 603, is clearly distinguishable, in that the tenant failed to show that the letting was for a term of one month, as was the case in these proceedings.

It is objected that the justice erred in permitting the landlords to put in oral proof of the service of the notice to quit, there being no affidavit of service attached to the papers. We can find no provision of law requiring an affidavit of service of such a notice to be attached to the petition, and it was held in People ex rel. Vogler v. Walsh, 13 Wkly. Dig. 440, and also in Posson v. Dean, 8 Civ. Proc. Rep. 177, which will be more particularly noticed hereafter, that such an affidavit was not evidence, and that the. service of such a notice had to be "proved by. competent common-law evidence. The oral proof' was, therefore, not-only properly admitted, but was essential to the proof of the landlords’ case.

It is further objected that the length of notice was not sufficient, and it was argued that the tenancy was one at will and required thirty days’ notice; but, as before shown, it was clearly a tenancy from month to month and was terminable on five days’ notice. It is idle to contend that six months was required under the justice’s finding.

Appellant also contends that there was no proof of service on the tenant of the five days’ notice as required by the statute. There is some confusion in the testimony as to. whether the :five days’ notice that was served was signed.-by James Simpson ■only or by Simpson, Crawford & Simpson, and also whether ■the original or a copy was served upon the tenant. But, we -.think, there is quite sufficient proof in the case to warrant the ■justice in finding as he did, that a proper notice of five days was served upon the tenant and that it was duly signed by the landlords, Simpson, Crawford & Simpson. It is true that two papers were produced before the justice, but he had the right and it was his duty upon the evidence to determine which was served.

It is further objected to the notice, that if any paper was served signed by Simpson, Crawford & Simpson, the landlords, it was the original and not a copy, and was, therefore, void, and Posson v. Dean, supra, is cited in support of this contention. But that case only determined that where the three days’ notice of demand for rent was required, it had to' be made by serving a copy and not the original. The five days’ notice, in the case of a monthly tenancy, is under an entirely different provision- of law, and we cannot conceive how the tenant could have been in any way injured or misled by the service upon her of the original if the original was served instead of a copy. Even in the case of a three days’ notice of demand of rent we very much doubt whether the decision in Posson v. Dean is correct. Section 2231, relied upon in support of the position, merely provides for the service of the three days’ notice as prescribed by section 2240 for the service of a precept; that is, it relates to the time and manner of service rather than to the thing to be served, and surely there is a wide difference between a notice and a precept. There can be but one original of a single precept, while there may be many copies «of a notice, and in the sense required in these sections we think the original itself may be regarded as'such copy; at any rate the tendency of the courts of late years has been to disregard mere technicalities where it is evident that no harm could have arisen by reason of their omission.

A further objection is made to the service of the five days’ notice, in that it was not served by either the landlords or any agent of theirs. It is, however, clear from the testimony that it was served by some one having authority from the landlords, which certainly makes him an agent within the meaning of the statute. What one does by another he does himself. The contention that this notice to quit must be served by a marshal or a person duly deputized or empowered by the justice to do so is futile. The service of this notice was not in any way a court proceeding, nor subject to the regulations in regard to District Courts. The act of 1889, providing that the notice shall be served in the same manner as a summons, relates to the way in which and the person upon whom the notice is served and not to the person who shall serve it.

The point made by appellant’s counsel on his brief as t® the admission and exclusion of evidence is altogether too indefinite and uncertain, especially in view of the fact that he ' did not argue any of them orally on this appeal. It merely refers to certain pages of the testimony - without stating what questions were asked or answers excluded, or' any reason for any error in respect to any of them. We, however, have examined the record carefully and find that the references in the brief to some of the pages must be wholly inaccurate, as there are no exceptions ■ at all on such pages. The question “ Did you make any agreement as to the renting of the premises ? ” was improperly admitted, but the subsequent testimony showing what was said, and the introduction of the agreement, sufficiently cured the error... The admission of this written agreement was also objected to on the ground that the allegation in the precept was that the rent was from October to October, 1894, and as immaterial. The paper was evidence of the original agreement to lease and also that the letting was from month to month thereafter. It was, therefore, material to show the character of the tenancy at its inception, which continued down to the time these proceedings were brought, as determined by the justice. McCormick, the landlords’ agent, was asked whether he took care of these proceedings for the plaintiffs, and defendant excepted to its exclusion. We think it was immaterial, and it has not been pointed out in what way it was material or how it could have injured the tenant.

The motions for the dismissal of the proceeding at the close of the landlords’ case and for an order in "the tenant’s favor at the close of the testimony were properly denied, as we have before shown. The landlords made out a prima, facie case and the tenant’s testimony raised a conflict of evidence which it was the province of the justice tq> determine, and we are fully satisfied that his determination was correct.

The final order should, therefore, be affirmed, with costs.

Bischoff and Giegerich, JJ., concur.

Final order affirmed, with costs.  