Cohen v. Green

Bischoff, J. For error in the exclusion of certain evidence offered by the tenant — appellant, it appeal's to us that the final order is well assailed and that a new trial should be had. - The issue was as to the terms of the verbal agreement entered into by the tenant with the plaintiffs’ grantors of the premises, whether the tenancy was from month to month and so terminable by five days’ notice, as actually given, ,or a hiring without any specified period for its duration, and thus to endure until the 1st day of May succeeding, and again annually if not terminated. 3 R. S. 2634, § 202 (Birdseye’s 2d ed.); Douglass v. Seiferd, 18 Misc. Rep. 188. If a tenant from month to month, the appellant was properly to be dispossessed, but the proceeding was defectively instituted if the lease was indefinite as to its duration, and this was the rule adopted in the submission of the case to the jury. The evidence for .the landlords showed a letting from month to month, -with at most a permission to the defendant to remain as monthly tenant until the premises were sold or improved, ■ if he paid the rent promptly. Since the premises had been sold shortly prior to the giving of notice by these plaintiffs, the tenancy might well be taken, for the .purposes of this'proceeding, as from month to month only, according to this version of the transaction. The tenant’s testimony, however, was that the plaintiffs’ grantors-had agreed with him for a tenancy to endure so long "as he-paid his rent, without any further limitation or qualification, and there was, therefore, a direct despute as to what the terms of the letting really were, the issue being very clearly defined. .To substantiate his story, the tenant sought to show that after the tenancy had been entered upon, he was required by his landlords to make repairs to the premises in accordance with orders of [336] the board of health and also to pay the water rates upon' the property, and that he complied with these requirements. This evidence was excluded as immaterial and irrelevant, apparently upon the theory that matters occurring after the lease had been made could not affect the terms of that lease, and exception was duly taken. If in fact the landlords had called upon the tenant to observe' requirements which were not .incidental to a hiring by the month and had accepted his performance of these assumed obligations as a necessary observance of his duties under the agreement actually made,-the circumstance would certainly .tend to support the tenant’s testimony that the agreement looked to something more than a monthly letting, and thus the evidence in question was -relevant and material to the one issue in the case, the terms of the lease, since it.supported, a finding that the tenant’s proper performance was understood to involve further obligations than those attaching to a. monthly lease. " - Evidence that the tenant, unasked by the landlords,- had made extensive additions to the premises may well have been objectionable, but many of the -questions excluded went to the tenant’s performance at the landlords’ direction* and these, as noted, should, have been allowed. ; • It is argued for the respondents that the lease should be construed as for a monthly letting, even assuming the tenánt’s testimony to be true, since the rent was payable monthly. But such is not an indisputable presumption where- the term is indefinite, under the statute applicable to tenancies in the city of New York (McAdam on Landl. & Ten. [2d ed.], § 20); and where there is evidence, as there was in this case, that the letting was intended to be greater than monthly in duration, the question necessarily becomes one of fact, and, at most, the periods of payment are to be considered together with the other evidence bearing upon that fact. Douglass v. Seiferd, supra. Final order reversed and new trial ordered, with costs to appellant to abide the event. Daly, P. J., and McAdam J. concur. Order reversed and new triál ordered, with costs to appellant .to abide event.