Burns v. . Bryant

31 N.Y. 453

• Court: New York Court of Appeals
• Decided: March 5, 1865
• Status: Published

Opinions

The defendant was in possession, holding for no particular time, paying no rent, making no compensation for the use of the land, but under agreement to surrender the premises whenever the landlord should require the possession. He was clearly a tenant at will (Post v. Post, 14 Barb., 253, and cases and authorities cited there). As such tenant at will the defendant was entitled to one month's notice to quit and surrender the premises. (3 R.S., 5th ed., p. 35, §§ 7, 8, 9.) The duration of the tenancy is uncertain, and the landlord cannot eject the tenant summarily. He has one calendar month in which to make his arrangements to remove. The form of the notice is not prescribed further than it must require the tenant to remove from the premises, and it must be in writing. The 9th section declares that "at the expiration of one month from the service of such notice the landlord may reënter, c." In this case, the premises being unoccupied at the time, the landlord reëntered by the plaintiff before the expiration of the month. But the trespasses were not committed till May and June following, two or three months after the month had expired. The fact that the notice was served on the 24th of January, requiring the tenant to remove on the 20th February, could make no difference, as there is no claim for trespasses committed prior to the 24th February. All the defendant was entitled to was one month's notice to quit. It could make no difference that a specific day was fixed in the notice. The statute would still give him the month in which to make his preparations to remove. This month had long expired when the defendant virtually undertook to reënter himself, as against his landlord, claiming that his tenancy had not terminated.

It seems to me very clear that there was no foundation for such a claim on the part of the defendant.

This judgment should be affirmed.