Russell v. McCartney

Ellison, J. — Plaintiff and defendant entered into a ■co-partnership in the livery stable business in the town of Cameron. Plaintiff was the owner of a barn which the firm was to occupy, beginning the occupancy on July the eighth, the rental value being fixed at twenty-five dollars per month, of which defendant was to pay plaintiff $12.50. Defendant was the owner of the stock and “outfit,” and until plaintiff paid him one-half the value thereof, he was to receive ten per cent, interest on one-half the value. The parties do not agree as to the manner in which the barn was held. Defendant denies there was the relation of landlord and tenant existing between them and maintains that the barn, or the use of the barn, was partnership property, to be held by the partnership, so long as the partnership existed and thereafter for a time sufficient to wind up the partnership affairs. Neither do they agree as to the length of the tenancy or occupation. The plaintiff contends the tenancy ceased under the agreement at the date of the [547] dissolution of the partnership, September 21, 1882 ; that under the agreement the tenancy ended at that time, and no notice to quit was necessary. Defendant claims the tenancy, not being in writing, fell under section 3078, Revised Statutes, and that he should have received one month’s notice to quit. If the lease was to be co-extensive with the partnership, when the partnership ceased, the lease would likewise cease, and no notice to quit would be necessary, notwithstanding the tenancy may have been from month to month, under the provisions of section 3078. Johnson v. Hartshorn, 52 N. Y. 173, 176. The difficulty, however, in sustaining plaintiff’s ■case is, that he has brought his action as though the lease had been originally made to defendant, instead of to the firm. He states that defendant wilfully holds possession of the premises ‘ after the termination of the time for which they were demised and let to him, and after one month’s notice in writing ’ ’ to quit the premises. In other words, his statement is in conflict with his testimony and the theory upon which counsel place the case here; which is that the renting was to the firm for the period of the partnership, requiring no notice to quit. There is no reason for exempting actions of unlawful detainer from the rule that one’s case must be put in the statement or petition as it exists, in order to avoid a failure of proof. If the tenancy be regarded as from month to month, under section 3078, and as requiring a month’s notice to quit, plaintiff would still fail, for as the. tenancy began on the eighth day of July, the notice must be to terminate on the corresponding day ©f the succeeding month “If he suffers a new month to commence, he cannot terminate the tenancy till the end of the next month, and in order to do so, he must give the required notice at or before the end of the eurrent month.” 52 Mo. 327. The notice in this oase was served September 26, and the •earliest day it could become effective was November 8, whereas this action was begun November 2. Judgment reversed and the cause remanded. All concur.