Duffy v. Ogden

The opinion of the court was delivered, by Agnew, J. — This was a proceeding under the Landlord and Tenant Act of 14th December 1863. It is objected that three months’ previous notice of the landlord’s intention to repossess himself of the demised premises was not given. The last day of the lease was the 24th day of March 1869, and the notice was given on the 25th day of December 1868. Was this three months’ notice ? There has been much clashing of opinion as to the legal period of notices, and many fine distinctions drawn which need not be noticed in this case, as the question depends on the language of the act itself for its solution. The cases will be found fully collected and considered by Justice Porter in Cromelien v. Brink, 5 Casey 522. The general rule now observed is, that when by an act of the legislature a given number of days are allowed to do an act, or it is said an act may be done within a given number of days, the day in which the rule is taken or the decision made is excluded. This is the rule stated in Gosweiler’s Estate, 3 Penna. 201, and reaffirmed in Cromelien v. Brink. Thus where a time is given for an appeal from a judgment, or for its revival, the day of the judgment is not counted. But the previous notice required by the Act of 1863 is measured by the terms of the act itself, as will be seen by its language. The proof to be made by the landlord, inter alia, is, “ that the term for which the premises were demised is fully ended, and that three months’ previous notice had been given.” Previous to what? The act answers — previous to the determination of the lease. But when does the lease fully end and determine ? Certainly not until the last moment of the last day of the term, which in this case was the 24th day of March. The landlord’s right of re-entry did not [242] begin, therefore, until the first moment of the 25th day of March had arrived. This correspond.? with the general custom and understanding. Leases beginning on the 1st day of April expire on the 31st day of March in the following year; the old tenant giving up and the new tenant coming in on the 1st day of April without a gap in the possession. It is obvious, therefore, that the 24th day of March counted a whole day when its last moment had arrived. Counting the 25th day of December, on which the notice was given, and the 24th day of March, when the lease had expired, the three months were fully ended and expired before the landlord’s right of re-entry had accrued. The only defect of time which could be alleged is in the 25th of December, the day on which notice was given. But that is also to be regarded as a whole day, for the law takes no account of the fractions of a day in the computation of time. Service on that day was one day’s notice, and therefore the three months’ notice previous to the termination of the lease was complete and fully ended. The next day, March 25th, was the beginning of a new period. The judgment is therefore affirmed.