Kelley v. Osborn , 155 N.Y.S. 451 ( 1915 )

Page, J.

The plaintiff is the purchaser of certain premises under a mortgage foreclosure. The defendant held a lease from the former owner for a term of three years expiring May 1, 1915, at sixty dollars per month. It is conceded, that this lease was terminated by the foreclosure prior to July 1, 1914. The only-evidence of the nature of the defendant’s tenancy is the fact that he paid rent to the new landlord each month at the rate of sixty dollars per month until January 30, 1915, upon which' date he paid the rent for the month of January and vacated the premises. This action is brought to recover rent for the month of February, 1915, on the theory that it is an indefinite hiring which section 232 of the Real Property Law converted into a hiring until the 1st day of May following. Judgment was granted for-the plaintiff on this theory.

It is well settled that section 232 of the Real Property Law only applies where there is an agreement for hiring in which the term of lease remains undetermined. In the case at bar there is no evidence of snch an agreement. In Douglass v. Seiferd, 18 Misc. Rep. 188, 191, McAdam, J., said: “ Where it appears that there is an annual rent reserved, and the payment is to be made by the quarter, or month or week, then the renting is a yearly letting, without regard to the periods of payment. But where there is no such letting and there is no evidence but the mere fact of payment at intervals of a week or month, the implication is .that the renting is a monthly or weekly one, just as the payment is monthly or weekly. ’ ’ I am of the opinion that in the instant case the evidence shows a monthly letting rather than an indefinite hiring and the statute relied upon by the plaintiff does not apply. The case is very similar to the case of Lawrence v. Hasbrouck, 21 Misc. Rep. 39, in which the tenant executed a lease of premises for thirteen months, which lease was void because the landlord failed to execute it. The tenant occupied the premises for several months paying the rent monthly and then abandoned them. In an action for the subsequent rent it was held by this court that the tenant by entering without a valid agreement and paying monthly rent became a monthly tenant and had the right to remove at the end of any month. In the present case there being no agreement except such as could be implied from the payment of monthly rent, the tenancy must be held to be a monthly tenancy which terminated at the end of each month.

The judgment for the February rent must accordingly be reversed, with thirty dollars costs, and the complaint dismissed, with costs.

Bijur and Shearn, JJ., concur.

Judgment reversed, with thirty dollars costs, and complaint dismissed, with costs.