Opinion
March 3, 1947.
A.J. Veraldi and Grant Roe for landlord.
David Fishman for tenant.
The tenancy in this proceeding is one from month to month or a tenancy for an indefinite period. The term began on the first day of the month and ended on the last day thereof. The notice required by section 232-b Real Prop. of the Real Property Law served by the landlord on December 16, 1946, specified that the tenant was required to vacate the premises on or before February 15, 1947, which was not the anniversary date of the term.
The law seems to be well settled that the surrender of possession date must coincide with the expiration of the term or rental period. (86 A.L.R. 1349; People ex rel. Botsford v. Darling, 47 N.Y. 666; Witherbee, Sherman Co. v. Wykes, 159 A.D. 24; 1938 Report of N.Y. Law Revision Commission, pp. 373, 384.)
The Law Revision Commission recommended that the Legislature adopt a new section of the Real Property Law to be known as section 228-a which would permit a termination of such a tenancy at any time by a written notice of not less than thirty days. This recommendation was not adopted. The commission in support of such proposal said (p. 384): "In order that uncertainty may be eliminated and flexibility attained, it seems desirable to permit the notice to become effective at the expiration of thirty days after the giving of the notice."
Motion to dismiss petition and precept granted.