
    Charles H. Adams, App’lt, v. The City of Cohoes, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1889.)
    
    Landlord and tenant—Tenancy eroji year to year—How created— Notice.
    Defendant occupied certain premises belonging to plaintiff, paying a stated rent therefor, semi-annually, from May 1, 1870. to May 1, 1875 By a resolution passed by the common council, the mayor was authorized to rent the premises atan increased rental from Mayl, 1875, for three years. Hodease was executed by either party, but defendant continued in possession, paying rent at the increased rental, on the first days of November and May in each year, until August 1, 1885, when it vacated the premises and tendered the key to plaintiff’s agent. Defendant paid the rent to May 1, 1886. Held, that a tenancy from year to year was created by law; that neither party was required to serve upon the other notice of an intention to terminate the tenancy; that should it be held that notice was required, the act of defendant in tendering the key to plaintiff’s agent nine months prior to the close of the current year, when the defendant vacated the premises, was sufficient.
    Appeal by the plaintiff from a judgment entered in favor of the defendant, after a trial at the Albany circuit.
    
      Edwin Countryman, for app’lt; N. C. MoaJc, for resp’t.
   Ingalls, J.

This action was brought by the plaintiff to recover of the defendant the rent of certain premises situated in Cohoes, from May 1,1886, to the first of November of the same year, at the rate of $1,200 a year, payable semiannually. The defendant became the tenant of the plaintiff, of said premises, May 1, 1870, at the annual rent of $700, payable semi-annually, and occupied the premises continuously to May 1, 1875, at such rent.

In the month of March, 1875, the plaintiff informed the common council of the defendant, that he should exact $1,200 as the annual rent of said premises, commencing on the 1st day of May, 1875, payable semi-annually. On the 9th day of April, 1875, the common council of the defendant adopted the following resolution :

“Resolved, That the mayor be and hereby is authorized to rent, for the use of the city, the premises in Egbert’s hall, now occupied as common council chamber and offices for justices and city officials, for period of three years from May 1st, prox., at an annual rent of twelve hundred dollars ($1,200).”

No lease, or other written agreement, was executed by either party, but the defendant continued in the occupation of the premises, paying the rent therefor at the yearly sum of $1,200, semi-annually, on the 1st days of November and May of each year until August 1, 1885, when the defendant vacated the premises, and tendered the key to John Wakeman, who was the plaintiff’s agent, to receive and collect rents of the premises in question. Wakeman refused to receive the key. The plaintiff was soon thereafter informed that the defendant had abandoned the premises. The defendant paid the rent to May 1, 1886, the close of the year in which the defendant vacated the premises. The plaintiff sought to recover at the trial, $600 rent of the premises from May 1, 1886, to November 1st of the same year, with interest thereon from the time the same was claimed to have become payable. The plaintiff based his right of recovery upon the alleged ground, that the defendant had omitted to serve upon him a proper notice of its intention to terminate the tenancy on the 1st day of May, 1886.

No lease or other written agreement having been executed by either of the parties in regard to said rental, and the defendant having occupied the premises upon the same terms and conditions, except the payment of the increased rent, from May 1, 1875, to the time of the abandonment of the premises, August 1, 1885, as it had done previous to May, 1875, we are convinced that a tenancy from year to year was created by law, as the result of the holding over by the defendant in the possession of such premises, after the expiration of the first year with the consent, expressed or implied, of the plaintiff, and such relation continued between the parties until May 1, 1886. The defendant having continued in the actual occupancy of the premises after May 1, 1885, and until August 1, 1885, it became, in consequence of such holding over, liable to the plaintiff for the rent of the premises until the 1st day of May, 1886. We conclude that the legal effect of such holding over by the defendant from year to year, was the creation of a new term which expired at the close of each current year, at which period the tenant was at liberty to vacate and surrender the premises, and the landlord could institute proceedings to dispossess the tenant, and neither party was required to serve upon the other notice of an intention to terminate such tenancy. No element of uncertainty as to the time when the tenancy, in legal effect, would terminate, became incorporated into the agreement between the parties, no option or election, to continue the tenancy for an uncertain period by either party has been shown, and, consequently, this case is distinguishable, in that particular, from some of the adjudications to which we have been referred, of which Pickett v. Bartlett (107 N. Y., 277; 12 N. Y. State Rep., 36), is an example. ' ‘

Without undertaking to discuss the numerous cases to which Our attention has been directed by the respective counsel, which would be an almost endless task, we content ourselves with stating the result of our examination of the facts, and of the law which we deem applicable thereto, which is, that the cause was properly decided at the circuit.

First. Because no notice, such as plaintiff claims, was required to terminate such tenancy.

The holding over from year to year upon substantially the same terms and conditions, and with the consent of the plaintiff, in effect, created each year a new term, complete in itself, and having a certain termination. Park v. Castle, 19 Howard Pr., 29. That case was cited with approval in Schuyler v. Smith (51 N. Y., 316), Nichols v. Williams (8 Cowen, 13), Post v. Post (14 Barb., 255), Conway v. Starkweather (1 Denio, 113), Austin v. Strong (47 N. Y., 679; 4 Kent’s Com. [vol. 4, 5th ed.], 114). The author says: “It is settled, however, that notice is not requisite to a tenant whose term is to end at a certain time, for in that case both parties are apprized of their rights and duties.”

Moreover, if it should be held that notice was required to terminate the tenancy, we think sufficient appears in the case from which such notice to the plaintiff may be inferred of the intention of the defendant to answer such requirement. Nine months previous to the close of the current year the defendant vacated the premises and tendered the key to the plaintiff’s agent; of which the plaintiff was duly informed, and within a short time thereafter. No more unmistakable evidence of the intention of the defendant to terminate the tenancy could be furnished.

The judgment should be affirmed, with costs.

Learned, P. J., and Landon, J., concur.  