Dorr v. Barney

Smith, J.: The parol lease was not valid for more than one year, by the statute (2 R. S., 135, § 8), but as the defendant entered and held under it for more than a year, it inured as a tenancy from year to year, and it regulated the conditions of the tenancy in all respects except as to the duration of the term. (Schuyler v. Leggett, 2 Cow., 660; People v. Rickert, 8 id., 226; Lounsbery v. Snyder, 31 N. Y., 514; Reeder v. Sayre, 6 Hun, 564.) The defendant was, therefore, a tenant from year to year, and liable to pay the yearly rent specified by the parol lease, so long as he occupied the premises. The principal question is, when did the defendant’s tenancy cease ? That he occupied for two years, is not disputed. If for no longer, his tenancy terminated on the 16th June, 1869. But the referee has found that some of the defendant’s buildings remained on the brick-yard till the fall of 1869, and that some of his brick continued there till September, 1870. So long as the defendant thus continued to occupy even a part of the premises, the tenancy was not terminated, unless there was some agreement, express or implied, between the tenant and his landlord, which had the effect to put an end to the tenancy, notwithstanding the defendant’s continued possession. The referee [263] has not found a surrender. He found that at or prior to the termi nation of the second year, the defendant abandoned the possession of a part of the premises, but he found also that there was no express acceptance by the plaintiff of the part so abandoned, and although lie found certain facts and circumstances relating to the subsequent use by the plaintiff of some, part of the premises abandoned by the defendant, he has not found that there was an implied acceptance. The permission given by the plaintiff to Barker, as found by the referee, to let the portion of the brick which Barker was buying of the defendant remain on the premises, if he, plaintiff, came into possession, was not, of itself, a termination of the tenancy, even although granted with the knowledge of the defendant, and at his request. Barker was bargaining for but a part of the brick, and that part was not separated from the mass. And even a part of the brick which Barker contracted for, ultimately came back to the defendant’s hands, while on the premises. No sufficient notice was given by the defendant that he would quit the premises at the end of the second year. True, it is found that in April, 1869, he requested the plaintiff to lease the premises to other parties, and on the plaintiff’s refusing to do so except on conditions with which defendant declined to comply, he substantially declared his intention to leave the premises at the end of the second year; but it is also found that he gave no written or formal notice of his intention to terminate the lease at that time. But even if the defendant had given explicit and formal notice of his determination not to keep the premises another year, yet as he remained in possession, nevertheless, after the expiration of the year, such continuance in possession, notwithstanding what had taken place, enabled the landlord to treat him as a tenant for another year. The most that can be claimed by the defendant is, that the holding over furnished only presumptive evidence of the continuance of the tenancy, which was sufficiently rebutted by the facts already adverted to. But as there was no surrender or acceptance, the notice of intention to quit, found by the referee, did not repel the presumption of a continuance of the tenancy arising from the fact of the defendant’s remaining in possession. The case of Schuyler v. Smith (51 N. Y., 309) is an authority in point, in support of this [264] •position. So, also, is the case of Conway v. Starkweather (1 Denio, 113) which is approved and followed in the case first cited. The judgment should be reversed and a new trial had before another referee, costs to abide event. Talcott, P. J., concurred; Merwin, J., did not sit. Judgment reversed and new trial ordered before' another referee,, costs to abide event.