MERWIN, J.:

The plaintiff in his petition, which is dated November 2, 1895, alleged that on or about the 2d day of November, 1890, the petitioner, as landlord, let and rented the premises in question to the defendant "at the rate of $4 per month, from the said 2d day of November, 1890, for no fixed period, which said term has expired," and it alleged the service of a month's notice to quit. The defendant in his answer denied the main allegations of the petition, except as to amount of rent, and alleged that the renting was for the term of one year from April 1, 1891, and that after that date he held over from year to year, so that his tenancy would not expire until April 1, 1896. He also alleged that on the 1st of November, 1895, he paid to the petitioner, and the latter accepted, the sum of four dollars for one month's rent, ending November thirtieth following.

The payment of four dollars for the rent of November, 1895, was testified to by the defendant and by another witness, and was not in terms denied by the plaintiff. The counsel for the plaintiff claims that this was for rent for occupancy prior to November first. Assuming that the justice may have so found, the question then is whether the tenancy has ever been properly terminated.

It was alleged that a month's notice to quit was given. A notice was served on the 2d of October, 1895, and the proceeding was commenced on the 2d of November, 1895. "The day from which any specified number of days, weeks or months of time is reckoned shall be excluded in making the reckoning." (§ 27 of the Statutory Construction Law, as amended by chap. 447 of the Laws of 1894.) "The rule is well settled that in computing time the first day, or the day when the time begins to run, is to be excluded." (PARKER, J., in Judd v. Fulton, 10 Barb. 117.) So that, under the month's notice which was served on October second, the defendant had all of the second of November in which to leave, and on that theory the proceeding was prematurely commenced.

It is, however, claimed by the counsel for the plaintiff that no notice to quit was necessary.

The renting here, according to the petition and according to the testimony of the plaintiff, was for no fixed period. There was no writing. The plaintiff testifies that on or about November 1, 1890, the defendant came to him and asked him if he could have the premises, and that he replied he could at four dollars a month, and make his own repairs, and that nothing was said about the length of term he was to occupy; that he, defendant, paid twenty dollars down and made payments afterwards, but that he (the plaintiff) cannot state when, but that they were not made regularly. The defendant testifies that in December, 1890, he hired the premises; that he told plaintiff he wanted the house for the winter and one year from the first of April, then next, and the plaintiff replied, "All right;" that he was to pay him four dollars a month, payable every month, nothing being said when payable whether first or last of month, and that most of the time he paid about tenth or fifteenth of the month.

In People ex rel. Botsford v. Darling ( 47 N.Y. 666) it was held that "where a tenant is in possession under a parol agreement void by the Statute of Frauds, and has occupied for a year, paying the rent monthly, this creates a tenancy from month to month which can only be terminated by a month's notice to quit, expiring with the end of some month, reckoning from the beginning of the tenancy." The doctrine of this and kindred cases applied to the evidence on the part of the defendant would entitle him to a month's notice to quit. The evidence on the part of plaintiff presents no more definite term. It was not a lease for a definite time, and then a holding over in fact or by implication for a like definite time. It was, in substance, an agreement that the defendant, as long as he paid four dollars a month, could occupy until the plaintiff gave him notice to the contrary.

In Pugsley v. Aikin ( 11 N.Y. 494, 498) it was held that a renting "for one year from the first day of April, 1848, and an indefinite period thereafter" could not be determined except by notice. (See, also, Wilson v. Taylor, 8 Daly, 256; Hoffman v. Van Allen, 3 Misc. Rep. 99; Ludington v. Garlock, 29 N Y St. Repr. 600.)

We are of the opinion that the defendant was entitled to notice to quit and that the notice given being insufficient, the plaintiff failed to make out a case for dispossession.

All concurred.

Judgment of County Court and of the Justice's Court reversed, with costs in all the courts.