Opinion
December, 1899.
Douglass Minton, for appellants.
Elisha W. McGuire, for respondents.
In this proceeding to dispossess, the landlords, by verified petition, alleged the making of an agreement on or about January 12, 1899, with tenant Gilbert for the letting of certain premises to him, as a monthly lessee, and that he entered into occupation under said agreement, and introduced in evidence the following writing:
"From February 1st, monthly lease of 1-2 top loft, with elevator service as at present, heat and same power as at present at $800 per annum, payable monthly in advance on first of each month, or $66.66 on first of each month, giving to owner or tenant right to pass through to front of loft from elevator, and giving owner privilege to rent enough space for desk room to Lowenson. Rent for last half of January, $10.
" January 12, 1899. "This is a memorandum of verbal lease. "Estate of T. VERNON, "H.V. "[STAMP.] "L. GILBERT."
Subsequently, and on or about September 21, 1899, the landlords notified the tenant of their election to terminate the tenancy at the end of the following month of October. The tenant, admitting by not denying the agreement set forth in the petition, by verified answer alleged an oral lease of the premises from May 1, 1899, to April 30, 1900, at $800, payable monthly in advance, but offered no evidence in its support. The trial justice seemingly regarded the letting as a yearly one, and under the doctrine stated in Douglass v. Seiferd, 18 Misc. 188, 191, there might be force in such conclusion had the parties, in their agreement, not used the expression "monthly lease," which words may not be disregarded or construed as needless. The entire writing evinces a special agreement for tenancy by the month, and so for a term definite, to which the statute (1 R.S., m.p. 744; 2 id. [9th ed.] 1818, § 1), has no application. The judgment must, therefore, be reversed.
FREEDMAN, P.J., and LEVENTRITT, J., concur.
Judgment reversed and new trial ordered, with costs to appellants to abide event.