
    John Hoffman, Resp’t, v. James Van Allen, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed March 6, 1893.)
    
    1. Summary proceedings — Variance.
    A petition setting forth a verbal letting on or about November, for one month, is not sustained by proof of an oral lease in April, from month to month, so long as he would pay the rent.
    3. Same — Notice.
    A lease from month to month, so long as the rent is paid, is indefinite as to duration, and entitles the tenant to hold so long as he pays the rent, or until he receives a month’s notice to quit.
    Appeal from final order in a summary proceeding to dispossess a tenant for holding over. A month’s notice to quit was not given.
    
      Julius Heiderman, for app’lt; John McMahon, for resp’t.
   Pryor, J;

In the order before us we have an instance of the “ injustice and oppression ” which Judge Bronson apprehended from summary proceedings unless they be “carefully watched.” Hill v. Stocking, 6 Hill, 314, 318.

The petition alleges a verbal letting on or about the 1st November, 1892, “ for the term of one month.” The proof was of an oral lease, in April, “ from month to month, as long as he would pay the rent.” The evidence failed to sustain the petition. Romeyn v. Sickles, 108 N. Y., 650, 652; 13 St. Rep., 864.

Waiving the discrepancy betweemthe pleading and proof, still it appeals the petitioner miscarried iri making a case for an order of dispossession.

As to the notice requisite in summary proceedings, the distinction is between tenancies for a month and tenancies from month to month; in the former no notice being necessary, while in the latter the formal notice is indispensable. Wilson v. Taylor, 8 Daly, 256; Geiger v. Braun, 6 id., 506; Anderson v. Prindle, 23 Wend., 616.

Assuming, as held in some cases, Ludington v. Garlock, 29 St. Rep., 600, and citations, that notice be not requisite in' simple tenancies from month to month, here was something more. namely, a letting from month to month “ so long as the rent was paid.” These qualifying words, in effect, make the term indefinite and entitle the tenant to hold so long as he pays the rent, or until he receives a month's notice to quit.

The order reversed, with costs, and restitution directed.

Bischoff, J., concurs.  