Opinion
March, 1893.
Julius Heiderman, for defendant (appellant).
John McMahon, for plaintiff (respondent).
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 of November, 1892, "for the term of one month." The proof was of an oral lease, in April, from month to month so long as he would pay the rent." The evidence failed to sustain the petition. Romeyn v. Sickles, 108 N.Y. 650.
Waiving the discrepancy between the pleading and proof, still it appears the petitioner miscarried in 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, 9 N.Y. Supp. 24, 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.
Judgment accordingly.