People ex rel. Gleahill v. Schackno

48 Barb. 551, 1867 N.Y. App. Div. LEXIS 64

• Court: New York Supreme Court
• Decided: April 1, 1867
• Status: Published

Opinion

By the Court, Ingraham, J.

The agreement in this case was by parol, and provided for the renting of the premises for one month from the 1st of August, 1866, and for each successive month thereafter until the landlord should want the premises for his own use, whereupon the tenancy should expire. The notice was given on the 3d of October, 1866, and that the tenancy would expire on the 31st October, 1866. The landlord’s proceedings were taken 14th November, 1866.

This can hardly be called a tenancy at will or by sufferance, created by the tenant’s holding over his term, or otherwise. It is an agreement for an indefinite number of months, sub- ■ ject to be terminated by a notice from the landlord that he wants the premises. The termination of the letting was to take place when that fact was made known to the tenant. Under such an agreement a notice of thirty days was not necessary. This is so stated in Park v. Peet, (14 Barb. 253.) If this can be called a tenancy at will, still it contains the special provision that it shall cease on the happening of a certain contingency, which takes it out of the operation of the statute.

But if it be a tenancy at will, the statute only requires a month’s .notice to terminate it, and the insertion of the 31st October as the day which -would expire, although less than thirty days, did not vitiate the notice. It took effect in thirty days after the service. That was prior to the commencement of these proceedings. (Burns v. Bryant, 31 N. Y. Rep. 453.)

[New York General Term, April 1, 1867.

My conclusion is, that a notice of .thirty days was not necessary under this letting, and that the judge below was correct in his rulings. '■

Proceedings affirmed.

Ingraham, Leonard and Sutherland, Justices.]