Adams v. City of Cohoes

• Decision Date: 02 June 1891
• Parties: ADAMS v. CITY OF COHOES.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 175

28 N.E. 25

ADAMS

v.CITY OF COHOES.

Court of Appeals of New York, Second Division.

June 2, 1891.

Appeal from a judgment of the general term in the third department affirming a judgment entered upon a verdict rendered at the Albany circuit by direction of the court in favor of defendant, with costs.

This action was brought to recover rent of rooms on the second floor in plaintiff's building, occupied by the officers and agents of defendant. The occupation was under these circumstances: The defendant had prior to March 1, 1875, occupied certain rooms in plaintiff's buildings at the agreed annual rental of $700, payable semi-annually on May 1st and November 1st in each year. In April, 1875, plaintiff gave defendant notice that after May 1, 1875, he should require a rent of $1,200 a year, and the defendant's common council passed a resolution as follows: ‘Resolved, that the mayor be, and hereby is, authorized to rent for the use of the city the premises in Egbert's Hall, now occupied as common council chamber and offices for justices and city officials, for a period of three years from May 1st prox., at an annual rental of twelve hundred dollars, ($1,200.)’ There was no written lease or other writing in relation to the matter. The defendant continued to occupy for the three years succeeding May 1, 1875, and paid the annual rent of $1,200 on the 1st days of May and November, and continued to occupy until August, 1885, when the defendant removed its goods and furniture to another building, called ‘Larkin's Hall,’ and vacated the premises. This removal was known to plaintiff's agent, who was engaged in renting and collecting the rents of these rooms and other properties of plaintiff, and some 10 days afterwards a verbal notice was given to such agent of the plaintiff of such removal by defendant, and at the same time a key was tendered to him which he declined to take, and it, with the keys to other doors, was left in the doors. July 21, 1885, plaintiff sent a communication to defendant's common council proposing to sell Egbert's Hall, or lease the second and third floors, to defendant. The plaintiff was informed by his agent of defendant's removal within two or three weeks after it took place. Defendant did not pay the rent which fell due November 1, 1885. Plaintiff brought an action, which was defended, and a recovery was had for the rent. The plaintiff alleged in the complaint in that action that ‘on the 1st day of May, 1885, the defendant hired from the plaintiff, [describing the premises,] at the yearly rent of $1,200, payable in half-year installments;’ and ‘that the defendant took possession of and occupied said premises under said agreement;’ and ‘that the sum of six hundred dollars, being the part of said rent due on the 1st day of November, 1885, is still unpaid.’ The answer of defendant in that action admitted the hiring as alleged in the complaint, and set up the defense that on the 1st day of August, 1885, the plaintiff permitted the existence of a nuisance from the odor of offensive water closets, and also from noises created by stamping of feet, beating of drums, and tamborines by a band of the Salvation Army, by reason of which defendant was evicted. The defendant did not pay the rent which fell due, or was claimed to have fallen due, on May 1st, the succeeding year, viz., 1886, and the plaintiff recovered a judgment therefor by default, and the defendant paid the judgments. This action was brought to recover the half-year's rent which fell due (as alleged) on the 1st day of November, 1886.

Earl L. Stimson and E. Countryman, for appellant.

George H. Fitts and N. C. Moak, for respondent.

POTTER, J., ( after stating the facts as above.

There are two questions involved in the consideration of this appeal. The one is whether the defendant was bound to give the plaintiff notice of its intention to quit the premises, before it could successfully maintain a defense to the claim for rent set forth in the complaint in this action, and, if it was so bound, whether the undisputed facts established upon the trial of the action do not constitute such notice. If such notice was not required, or if required, and was sufficiently given, the direction of the trial court to the jury to render a verdict for the defendant was proper. From the examination I have given the record in this case, I entertain a clear conviction that the defendant was not bound to give the plaintiff such notice, and, if it was bound to, sufficient notice was given. The plaintiff's contention is to the effect that the tenancy of the defendant to the plaintiff, formerly existing, had not been legally terminated prior to May 1, 1886, and that the defendant continued liable to pay the plaintiff the rent of the premises from that date of the 1st day of November, 1886. It is undisputed that the occupation of the premises by defendant ceased upon the 1st day of August, 1885, and I am of the opinion that the legal tenancy ceased on the 1st day of May following that date. The defendant had prior to May, 1875, occupied the premises, with the consent of the plaintiff, for some years, and paid the plaintiff, as annual rent for the same, the sum of $700, in half-yearly payments, upon the 1st days of May and November in each year. In the month of April, 1875, the plaintiff gave the defendant notice that from May 1, 1875, the rent of the premises occupied by defendant would be $1,200 a year. Thereupon the common council of the defendant passed a resolution authorizing its mayor to lease the premises of the plaintiff for the period of three years from May 1, 1875, at a rent of $1,200 a year. There was no pecification either in the requirement of the plaintiff or in the resolution of defendant when or in what installments the rent should be payable. But that is not at all important, for the defendant paid the increased rent half-yearly as it had paid the former rent. No written lease was executed between the parties, and, as a parol lease for a period beyond one year is void, the relation that resulted between the parties was a lease for a year, if the tenant occupied the premises during that period; and, if the tenant continued in the occupancy of the premises beyond the year, he thereby became a tenant from year to year, at the same rate of rent. Reeder v. Sayre, 70 N. Y. 180-182;Laughran v. Smith, 75 N. Y. 209;Coudert v. Cohn, 118 N. Y. 309-311, 23 N. E. Rep. 298; Talamo v. Spitzmiller, 120 N. Y. 37-43, 23 N. E. Rep. 980. The language of the court in Reeder v. Sayre, supra, is: ‘The agreement, though by parol, and void as to the term and the interest in lands sought to be created, regulates the relations of the parties to it in other respects upon which the tenancy exists, and may be resorted to to determine their rights and duties in all things consistent with and not inapplicable to a yearly tenancy; such as the amount of rent to be paid, the time of year when the tenant could be compelled by the landlord to quit, and any covenants adapted to a letting for a year. Doe v. Bell, 8 Term R. 579; Arden v. Sullivan, 14 Q. B. (Adol. & E., N. S.) 832; Doe v. Amey, 12 Adol. & E. 476; Berrey v. Lindley, 3 Man. & G. 498; Edwards v. Clemons, 24 Wend. 480.’ And the court, through Justice BRADLEY, in the above-cited case of Talamo v. Spitzmiller, says: ‘While there may appear to have been some confusion in the cases in this state upon the subject, this doctrine has been more recently recognized. Reeder v. Sayre, 70 N. Y. 184...