Tice v. Norton

By the Court, Sutherland J. The question upon the issue was, whether the plaintiff held and occupied the premises under the demise stated in the avowry; that is, a demise for seven years and six months, ending on the 1st day of November, 1827, at and under a yearly rent of $550. The evidence produced by the defendant himself shewed, that though the plaintiff had occupied the premises for more than seven and an half years, yet that he had held under the agreement or demise which fixed the rent at $550, only from May, 1821, to Nevember, 1827, that is, six years and six months. The judge ruled, that upon this evidence the plaintiff was entitled by a verdict upon the issue; which was accordingly given by the jury. The contract or lease, as proved, was simply a notice given by an agent of the defendant, in January, 1821, to the plaintiff, that the defendant would require him to pay for the premises, after the first of May then next, the annual rent of $550 payable quarterly, and that subsequently the plaintiff paid rent at that rate. This was not a demise for any definite period. It was a lease for a year or at will, and probably ought so to have been stated. In Alexander v. Harris, (4 Cranch, 299,) it was held that an averment of a demise for three years would not be supported by. proof of a lease for one year certain, and two years further possession on the same terms, by consent of the landlord, unless an extension of the term was contemplated and provided for in the original lease. But if the defendant had aright to consider this a lease for the whole time that the plaintiff held under it, then it was a demise for only six years and an half, and did not support the avowry. In Forty v. Imber, (6 East, 434,) a variance between the demise, as stated in the avowry and as proved, was held im [667] material, expressly upon the ground that the strictness of the proceedings in this action at common law had been relaxed by the statute of 11 George 2 ch. 19, s. 22, and that since that statute the defendant might recover rent for a less period than he avowed for. It is tacitly admitted that at common law he could not. That statute we have never adopted; our proceedings are as at common law. (2 Chit. Pl. 512, 513, notes m. and n. and cases there cited. Cobb v. Bryan, 3 Bos. & Pul. 348. Wright v. Williams, 5 Cowen, 338, were most of the authorities on this subject are reviewed and collected.) Motion for new trial denied.