Conway v. Starkweather , 1 Denio 113 ( 1845 )

By the Court, Bronson, Ch. J.

When a tenant under a demise for a year or more, holds over after the end of his term, without any new agreement with the landlord, he may be treated as a tenant from year to year, and in all other respects as holding upon the terms of the original lease. The landlord has an election to treat him either as a trespasser, or as a tenant. He will be a trespasser if the landlord brings ejectment, or resorts to summary proceedings under the statute to recover the possession. He will be a tenant.if the landlord either receives or distrains for rent accruing after the end of the original term. There are also other ways in which the land’ord may signify his assent to the tenancy; and when he neither says nor does any thing, his acquiescence in the tenancy may, perhaps, be inferred from the mere lapse of time. (Rowan v. Lytle, 11 Wendell, 616.) There is, however, no occasion for considering that point in this case; for the landlords have unequivocally affirmed the tenancy by distraining for rent.

The tenant has no such election as that which belongs to the landlord. If he holds over, though for a very short period, without any unequivocal act at the time to give his holding the character of a trespass, he is not afterwards at liberty to deny that he is in as a tenant, if the landlord chooses to hold him to that relation. ' If the tenant may hold over for two weeks and then say he is not a tenant, I see no reason why he may not give the same answer after holding over as many months or years.

The plaintiff’s counsel regards the holding over as only presumptive evidence of the continuance of the tenancy, which would have been sufficiently rebutted by the offered proof that the plaintiff, before his term ended, refused to keep the property another year, even at a reduced rent. But such are mot my views. I do not think this a case for balancing presumptions : but one where the act of the plaintiff in holding over has given the defendants a legal right to treat him as tenant ; and that it is not in his power to throw off that character, however onerous, it may be. The counsel relied much upon the case of Abeel v. Radcliff, (15 John. 505.) The question there was, whether the landlord was concluded by the terms of the orignal lease as to the amount of the rent; and under very special circumstances, and by a divided court, it was held that he was not. The case has very little bearing upon the question under consideration.

We think the offered evidence was properly rejected. The defendants had a clear right to charge the plaintiff as tenant, holding according to the terms of the original lease. By those terms, the rent was payable quarterly in advance; and there was consequently a right to distrain, although the first quarter had not expired.

Judgment affirmed.