Buchanan v. Whitman

• Decision Date: 22 December 1896
• Citation: 151 N.Y. 253,45 N.E. 556
• Parties: BUCHANAN v. WHITMAN.
• Court: New York Court of Appeals Court of Appeals

151 N.Y. 253

45 N.E. 556

BUCHANAN

v.WHITMAN.

Court of Appeals of New York.

Dec. 22, 1896.

Appeal from supreme court, general term, Second department.

Summary proceedings by James A. Buchanan against Stephen M. Whitman to recover possession of certain premises in the village of Port Jerivs. From a judgment of the general term (27 N. Y. Supp. 604) reversing a judgment of the county court which reversed a judgment of a justice of the peace of the town of Deer Park, Orange county, defendant appeals by leave of the general term. Affirmed.

Lewis E. Carr, for appellant.

H. B. Fullerton, for respondent.

BARTLETT, J.

The plaintiff instituted summary proceedings to recover possession of premises leased by him to defendant, on the ground that the tenant was holding over after the expiration of his term. The defendant, answering the petition, denied that the term of his tenancy had expired, and averred that under the provisions of the lease he had the privilege of renewal for another year, of which he had availed himself.

The first important question presented is whether the term of the tenancy had expired when these proceedings were begun. The lease, bearing date the 8th day of April, 1892, contained this provision: ‘This lease is to extend for the term of one year from the date hereof.’ On the 8th of April, 1893, the plaintiff began these proceedings, and the question is presented whether he acted prematurely in so doing. It is the contention of the counsel for the defendant that the term of the lease continued during the entire day of April 8, 1893, while the plaintiff's counsel insists that the lease expired at midnight, April 7, 1893. This is a subject upon which a great diversity of opinion has prevailed in the courts of England and this country. Lord Mansfield, in Pugh v. Duke of Leeds, Cowp. 714, laid down the rule that ‘from the day’ may either include or exclude that day, according to the context and subject-matter. It has been held in many cases that the court will so construe a lease as to carry out the intention of the parties, if possible. Mr. Parsons, in his work on Contracts, says: ‘The computation shall always conform to the intention of the parties so far as that can be ascertained from the contract aided by all admissible evidence.’ 2 Pars. Cont. 175. This rule is recognized in a late English work. Foa, Landl. & Ten. (2d Ed. 1895), p. 85. There are also text books in this country which announce the same doctrine. 4 Kent, Comm. 95, note b; McAdam, Landl. & Ten. p. 187. In Deyo v. Bleakley, 24 Barb. 9, the general term of the supreme court held that where the period for which the lease was granted was from the 1st day of April 1853, for a term of five years, the day of the date of the lease was included in computing the term. The learned court was led to this conclusion by the fact that rent was made payable on the 1st day of April, July, October, and January in each year, thus disclosing the clear intention of the parties that the term of the lease should begin on the 1st day of April, 1853. In the case at bar we find that the parties have given a practical construction to the lease under consideration. The plaintiff, testifying in his own behalf, stated, among other things, that the lessees took possession of the premises April 8, 1892. It would be...