People ex rel. Chrome Steel Co. v. Paulding

Dtkman, J.: This is a proceeding by a landlord under the statute to remove a tenant for the non-payment of rent. The tenant entered first into the possession of the premises under a written lease, for the term •of five years, commencing on November 15, 1870, and providing for quarterly payment of rent. Occupation was had under this lease until its termination, and then the term was extended for two years by a written indorsement. These two years expired on November 15, 1877, but the tenant continued to possess and occupy the premises from that time to the present. When these proceedings were instituted the rent for part of the year 1876, and the whole period since, remained unpaid, and the defense interposed is that these proceedings can be maintained only for the rent accruing since November 15, 1879, the current year’s tenancy, for the reason that each year since the expiration of the lease has constituted a distinct and independent tenancy. . We cannot yield assent to this proposition. With the assent of the landlord the tenant continued to occupy the premises after the expiration of the written lease, and a reasonable inference is that both parties intended a tenancy thereafter, on the terms therein provided. The possession of the tenant was rightful, but it was •under the original demise. He held over after the expiration of the term, and thus became a tenant from year to year. Such tenancy might have been terminated by a notice by either party, but ■until such notice was given it was continuous. Both parties had [94] the election to continue the tenancy or terminate the same by notice. (Conway v. Starkweather, 1 Denio, 113; Schuyler v. Smith, 51 N. Y., 309; Laughran v. Smith, 75 Id., 205). When distress for rent was a remedy in the hands of the LukL lord in this State, it was held, where a tenant entered under a demise for two years and continued in possession nine years, the landlord might by one distress distrain for the rent accruing during the whole time. (Sherwood v. Phillips, 13 Wend., 479.) In that case the great question was whether the landlord could distrain for the whole nine years as one-term, and it was held he could. After an examination of some of the cases, Chief Justice Savage-says: “ Applying these principles to the pleadings in this case it follows that the occupancy in this case is to be considered as resting upon a valid lease for nine years. The right of the landlord to distrain is just as perfect as if there had been in the first instance a written lease for nine years.” The same doctrine was. held in Webber v. Shearman (3 Hill, 547), and Judge Cowen there said, “ Holding over after the expiration of a sealed lease is-a continuation of the same tenancy and an enlargment of the same term.” This rule comports with both reason and justice, and nothing in this case calls for the adoption of another. After the expiration of the written lease the tenant remained silent but continued his possession, and the landlord acquiesced in the continuance. Plainly, both parties understood the after occupation to be on the terms specified in the lease:- The appropriate mode of terminating this tenancy was by notice, and neither party gave it, and the tenancy yet continues. Our conclusion is that these proceedings were properly instituted, for the non-payment of the whole rent, and the judgment must be affirmed, with costs. Barnard, P. J., and Gilbert, J., concurred. Judgment affirmed, with costs.