Rumsey, J.;
This action was brought to recover for rent, claimed to have accrued in favor of the plaintiff because the defendants .held over in possession of a house (which they had leased from the plaintiff) after the expiration of the lease on the 1st of May, 1895. The letting seems to have been by parol; that it expired on the 1st of May, 1895, and that the defendants stayed in the house until the fifteenth of May is not denied. Because of these two facts the plaintiff claims to be entitled at his option to consider the lease extended for another year upon the same terms as the previous year, and to recover the rent down to the time of the bringing of the action, which -was in November, 1895. At the first trial the plaintiff was [326]*326permitted so to recover, but the judgment was reversed by the Court of Appeals upon the ground that the holding over was not such a one as. to entitle the landlord to regard the defendants as tenants for another year, and for that reason it was held that the plaintiff could not recover rent for the whole year. (Herter v. Mullen, 159 N. Y. 28.).
Upon that point undoubtedly the decision of the Court of Appeals is binding in all future trials of the case. The majority of the court delivered two opinions, and so far as the majority concurred in the reasoning of those opinions, and in the principles announced as the basis for the conclusion which they reached, those principles are, as the result of their .determination, binding upon us in the consideration of this appeal.
When the case was before the Court of Appeals it appears to have been a conceded fact that the defendants were prevented from vacating the premises upon the expiration of their lease because of the serious illness of their mother, who was one of their family. Her condition was such that any attempt to remove her on the first of May would undoubtedly have resulted in her death; and it was also conceded that the defendants removed from the house on the earliest possible day when that condition had ceased to exist. Upon these facts the majority of the court agreed that the holding over was not wrongful and that the defendants were not trespassers, because as the duty to remove from the premises upon the termination of the lease was not one arising from any. express. contract between the. parties (because there was no written lease), but only one implied by law — the rulé which relieves a party from the performance of a duty created by law when that duty is rendered impossible by an act of Grod or by an unavoidable accident through no fault of the party himself, was to be applied; and for this reason the defendants were not liable for a year’s rent. To what extent they were liable was not determined by the Court of Appeals because that question was not presented for decision, but it É now presented and must be decided.
The serious illness of the mother; the unavoidable holding over by the defendants in consequence thereof until the fifteenth of May; their removal upon that day, the earliest upon which it was possible to do so — Ml these facts were made to appear on the second trial [327]*327as they had been upon the first. It appeared in addition, however, that ujion the day of the removal the keys of the house, two in number, were attached to a tag which was addressed to Mrs. Herter, the plaintiff’s agent, at her house, No. 541 Madison avenue, New York city, and thus addressed, mailed by putting them in a post office box at the street corner. Mrs. Herter had before then gone to Monmouth Beach and had given directions for her mail to be sent to her at that place. She came back to Rew York about the fifteenth of May, remaining a few days, and then went to Onteora in Greene county, where she stayed until some time in June. She gave directions either at Rew York or at Monmouth Beach for her mail to be forwarded to her at Onteora. What became of the keys from -the time when they were put in the post office box on the fifteenth of May until they were received by Mrs. Herter does not appear, but it does appear that they arrived at the post office at Onteora on the second of June, and were at once delivered to Mrs. Herter. A letter was sent to her on the sixteenth of May advising her that the house was vacant, but it was not signed, by either of the defendants, and by whom it was signed does not appear, nor does it appear when it was received though Mrs. Herter thought it was some time after its date.
Upon this state of facts, the defendants contend that, having vacated the house on the fifteenth of May, and having mailed the keys ■ to the plaintiff’s agent, they were relieved from paying rent after that day. - The plaintiff contends that although the house may have been .vacated on the fifteenth of May,, yet it was the duty of the defendants to give her actual notice of that fact and of the surrender of the house to her, and that until that actual notice was received by her she was entitled to hold them liable for the rent. The learned justice at the Trial Term held that the mailing of the keys was a sufficient notice of the fact of the surrender, and that, therefore, the plaintiff was entitled to recover rent only to the' fifteenth of May. The rent due to that time being less than fifty dollars, its amount, forty-nine dollars; and twenty-nine cents, was deducted from the costs, and judgment was entered for the defendants for their costs in excess of the amount so recovered.
The first question presented by this appeal is, what was the nature of the defendants’ liability after their holding over ? The Court of [328]*328Appeals held that they were not trespassers, from which it follows-that they were lawfully there. Being lawfully there, it necessarily follows that the plaintiff could not sue. them for trespass. Their remaining there was by virtue of the possession which they had originally obtained' under the expired lease. Although its terms had come to an end, yet, because of the unavoidable necessity of remaining, the duty to vacate the premises had not yet arisen, and the defendants were relieved from that requirement- • of their contract until their mother became well enough to be removed. As,, then, they wére there lawfully under their lease, because they had been relieved by unavoidable necessity from the duty of vacating the premises, it is fair to assume ■ that the relation between the-defendants and the plaintiff was such that he could insist that as-they remained there under the lease, and that until the unavoidable necessity which kept, them there should cease,, they were still his-tenants and liable to perform, all the acts which as tenants they were hound to do under the lease.- One of these was, of course,, the payment of rent; and as the plaintiff was at liberty to.insisthat the defendants were tenant's, he was undoubtedly at liberty to-claim that they were liable for-the rent just so long as they continued in occupation of. the premises, although the Court of Appeals-has held that they were not liable for a year’s rent, for the reasons-given in their opinions.
But the same considerations which in ordinary-cases would entitle a landlord to insist upon the liability of a tenant for a year’s rent, upon his holding over,, apply, I think, to this case, to authorize him to insist that the term is continued until the premises are surrendered,, and that he is- liable for rent until that time, although not liable for a full year’s rent, as the Court of Appeals has held.
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Rumsey, J.;
This action was brought to recover for rent, claimed to have accrued in favor of the plaintiff because the defendants .held over in possession of a house (which they had leased from the plaintiff) after the expiration of the lease on the 1st of May, 1895. The letting seems to have been by parol; that it expired on the 1st of May, 1895, and that the defendants stayed in the house until the fifteenth of May is not denied. Because of these two facts the plaintiff claims to be entitled at his option to consider the lease extended for another year upon the same terms as the previous year, and to recover the rent down to the time of the bringing of the action, which -was in November, 1895. At the first trial the plaintiff was [326]*326permitted so to recover, but the judgment was reversed by the Court of Appeals upon the ground that the holding over was not such a one as. to entitle the landlord to regard the defendants as tenants for another year, and for that reason it was held that the plaintiff could not recover rent for the whole year. (Herter v. Mullen, 159 N. Y. 28.).
Upon that point undoubtedly the decision of the Court of Appeals is binding in all future trials of the case. The majority of the court delivered two opinions, and so far as the majority concurred in the reasoning of those opinions, and in the principles announced as the basis for the conclusion which they reached, those principles are, as the result of their .determination, binding upon us in the consideration of this appeal.
When the case was before the Court of Appeals it appears to have been a conceded fact that the defendants were prevented from vacating the premises upon the expiration of their lease because of the serious illness of their mother, who was one of their family. Her condition was such that any attempt to remove her on the first of May would undoubtedly have resulted in her death; and it was also conceded that the defendants removed from the house on the earliest possible day when that condition had ceased to exist. Upon these facts the majority of the court agreed that the holding over was not wrongful and that the defendants were not trespassers, because as the duty to remove from the premises upon the termination of the lease was not one arising from any. express. contract between the. parties (because there was no written lease), but only one implied by law — the rulé which relieves a party from the performance of a duty created by law when that duty is rendered impossible by an act of Grod or by an unavoidable accident through no fault of the party himself, was to be applied; and for this reason the defendants were not liable for a year’s rent. To what extent they were liable was not determined by the Court of Appeals because that question was not presented for decision, but it É now presented and must be decided.
The serious illness of the mother; the unavoidable holding over by the defendants in consequence thereof until the fifteenth of May; their removal upon that day, the earliest upon which it was possible to do so — Ml these facts were made to appear on the second trial [327]*327as they had been upon the first. It appeared in addition, however, that ujion the day of the removal the keys of the house, two in number, were attached to a tag which was addressed to Mrs. Herter, the plaintiff’s agent, at her house, No. 541 Madison avenue, New York city, and thus addressed, mailed by putting them in a post office box at the street corner. Mrs. Herter had before then gone to Monmouth Beach and had given directions for her mail to be sent to her at that place. She came back to Rew York about the fifteenth of May, remaining a few days, and then went to Onteora in Greene county, where she stayed until some time in June. She gave directions either at Rew York or at Monmouth Beach for her mail to be forwarded to her at Onteora. What became of the keys from -the time when they were put in the post office box on the fifteenth of May until they were received by Mrs. Herter does not appear, but it does appear that they arrived at the post office at Onteora on the second of June, and were at once delivered to Mrs. Herter. A letter was sent to her on the sixteenth of May advising her that the house was vacant, but it was not signed, by either of the defendants, and by whom it was signed does not appear, nor does it appear when it was received though Mrs. Herter thought it was some time after its date.
Upon this state of facts, the defendants contend that, having vacated the house on the fifteenth of May, and having mailed the keys ■ to the plaintiff’s agent, they were relieved from paying rent after that day. - The plaintiff contends that although the house may have been .vacated on the fifteenth of May,, yet it was the duty of the defendants to give her actual notice of that fact and of the surrender of the house to her, and that until that actual notice was received by her she was entitled to hold them liable for the rent. The learned justice at the Trial Term held that the mailing of the keys was a sufficient notice of the fact of the surrender, and that, therefore, the plaintiff was entitled to recover rent only to the' fifteenth of May. The rent due to that time being less than fifty dollars, its amount, forty-nine dollars; and twenty-nine cents, was deducted from the costs, and judgment was entered for the defendants for their costs in excess of the amount so recovered.
The first question presented by this appeal is, what was the nature of the defendants’ liability after their holding over ? The Court of [328]*328Appeals held that they were not trespassers, from which it follows-that they were lawfully there. Being lawfully there, it necessarily follows that the plaintiff could not sue. them for trespass. Their remaining there was by virtue of the possession which they had originally obtained' under the expired lease. Although its terms had come to an end, yet, because of the unavoidable necessity of remaining, the duty to vacate the premises had not yet arisen, and the defendants were relieved from that requirement- • of their contract until their mother became well enough to be removed. As,, then, they wére there lawfully under their lease, because they had been relieved by unavoidable necessity from the duty of vacating the premises, it is fair to assume ■ that the relation between the-defendants and the plaintiff was such that he could insist that as-they remained there under the lease, and that until the unavoidable necessity which kept, them there should cease,, they were still his-tenants and liable to perform, all the acts which as tenants they were hound to do under the lease.- One of these was, of course,, the payment of rent; and as the plaintiff was at liberty to.insisthat the defendants were tenant's, he was undoubtedly at liberty to-claim that they were liable for-the rent just so long as they continued in occupation of. the premises, although the Court of Appeals-has held that they were not liable for a year’s rent, for the reasons-given in their opinions.
But the same considerations which in ordinary-cases would entitle a landlord to insist upon the liability of a tenant for a year’s rent, upon his holding over,, apply, I think, to this case, to authorize him to insist that the term is continued until the premises are surrendered,, and that he is- liable for rent until that time, although not liable for a full year’s rent, as the Court of Appeals has held. The same-principle applies as when .one converts property of another to-his own use, in which case the owner, if he does not see fit to insist upon a tort, may sue for the price of it upon an implied contract, of sale.
The question then arises, how long did this liability continue; and that is to be decided by considering what was the duty of the defendants in surrendering the premises. They were in possession because of an unavoidable necessity which required their remaining, and it follows that just so long as that condition lasted, just so-[329]*329long their right to remain continued. The plaintiff had no means of ascertaining when that tenancy would come to an end, because it would continue until the exigency which justified its existence had passed. As between the two parties, the defendants alone ■could become aware when that occurred. If they were entitled to stay until then, they were bound to give notice when the necessity for their stay ended. It clearly was not the duty of the plaintiff to set a watch to see when the defendants were able to leave. He was kept out of the possession of the house by ah unavoidable necessity, the end of which the defendants alone would know; and he was entitled, when that exigency ceased, to have the defendants give him actual notice of that fact, and that they wished to surrender the house and were about to vacate it, and for him to take charge of it.
It was clearly then the duty of the defendants to give the landlord notice of their intention to leave the premises. (4 Kent Comm. [10th ed.] *103, 130; Ellis v. Paige, 2 Pick. 71, note. See, also, Rorbach v. Crossett, 19 N. Y. Supp. 450; Ludington v. Garlock, 9 id. 24; Adams v. City of Cohoes, 127 N. Y. 175; 53 Hun, 260.) .Was a sufficient notice given by the deposit of the keys of the house in a post office box on the street corner, although they were received by the plaintiff’s agent two weeks after such mailing? It seems that the parties had been accustomed to pay and receive the rent in that way, and wh.en the rent was received by the plaintiff through the post office department, it was acknowledged and, as thus received, accepted. Whether that made the post office department the.agent of the plaintiff or of the defendants is a matter of no importance, nor material in this controversy. But there is considerable difference between a permission to use the mails as a means for the payment of rent and a permission to use them to give notice of the termination of an estate. In the one case it is undoubtedly a business transaction such as takes place every day; in the other, it is a proposition to give up the possession of premises which have been lawfully held by the defendants, and which the plaintiff is entitled to take possession of because the defendants’ right to hold them is át an end. • The notice to which the plaintiff was entitled was such as would enable him to assert his rights of ownership and- take possession of the house. Whenever a party is entitled to such a notice, [330]*330lie is entitled to a personal notice, and I am not aware of any provision, of law entitling a party to serve any notice by mail, except in a few cases where that permission is expressly given by statute. (Rathbun v. Acker, 18 Barb. 393 ; McDermott v. Board of Police, 25 id. 635 ; People ex rel. Niagara Bridge & C. R. R. Co. v. L. & B. R. R. Co., 13 Hun, 211.) In every other case he is bound to give personal notice, and if be resorts to some agent to give that personal notice, the acts of the agent are his own, and he remains responsible until the .person entitled to that notice has actually received it.
There is no doubt of the. existence of this rule, and applying it to the present case, the defendants were bound to'give to the plaintiff personal notice of the fact that the house had been vacated, and bound at their own peril to see that the plaintiff actually received, that notice so that he could take posesssion óf it and protect it. Until that was done, they had not relieved themselves of the obligation which their holding over entailed upon them. There is no claim that any notice was given until the beys were delivered to Mrs. Herter by the postmistress at Onteora on the second of June. Therefore, it seems to me that the defendants had not,-during that time at least, performed their duty of giving a notice of their surrender of the premises to the plaintiff, and that he was entitled t-o insist that the rent to that time should be paid.
For that reason the decision of the learned trial justice at the Trial Term was incorrect, and the plaintiff should have been permitted to recover rent at least until the 2d of June, 1895, and the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the result.
Patterson, J., concurred; Ingraham, J., concurred in result; McLaughlin, J., dissented.