Murphy v. Dwyer

Bailey, J. This was an action of forcible detainer brought by Matthew Dwyer, a landlord, against James S. Murphy, his tenant, charging the defendant with holding possession of certain premises without right, after the determination of the tenancy by notice to quit. The evidence establishes the relation of landlord and tenant between the parties, and shows possession by the tenant and the payment of rent for a certain time prior to July 1, 1881, and that on that day the plaintiff caused a written notice to be served on the defendant to quit and deliver up possession of said premises to the plaintiff within thirty days from that date. There is no evidence in the record, however, showing or tending to show that after the expiration of said thirty days the defendant continued in possession of said premises, or- neglected or refused to surrender the same to the plaintiff. On this evidence there was a verdict and judgment for the plaintiff The gist of the plaintiff’s action is for the wrongful holding over by the tenant after termination of his tenancy, and it is manifest that, in the absence of proof of such holding over, there can be no recovery. As no evidence on that subject was submitted to the jury, the verdict can not be sustained. A precisely similar question was considered in Hersey v. Wes to ver, decided at.this term, ante, 197 and what was said in the opinion in that case is applicable here. There was a conflict in the evidence as to the terms of the defendant’s tenancy, it being insisted by the plaintiff that it was merely a tenancy from month to month, while the defendant claims to hold the premises under a lease for a term of five years, executed to him by the plaintiff’s grantor. As the case must be submitted to another jury, we forbear discussing the evidence, but for the reason above stated the judgment will be reversed and the case remanded. Judgment reversed.