p. 102the term, without the consent of the petitioner, and recited the giving of said notice. Thereupon the justice issued a precept reciting the substance of the petition ; that it had been shown that the tenant remained in possession after the expiration of his term without the permission of the landlord and after the service of said notice, and requiring the tenant to remove forthwith or show cause before the justice on the third day of June why possession of the property should not be delivered to the petitioner. On the return day of the precept the tenant interposed an answer containing a general denial and alleging that no sufficient notice had been served and demanding the dismissal of the proceedings, with costs. On the hearing the petitioner offered the lease in evidence and showed that twenty-five dollars was paid to apply on the rent before Hay 1, 1898, and was then permitted, under the tenant’s objection that the evidence was immaterial, to show that no further payment of rent was made. When the petitioner rested her case, the tenant moved for a dismissal of the petition on the ground that there was no evidence that the*tenant was holding over after the expiration of his lease, that the lease was fora term that had not yet expired and that a sufficient notice had not been served. This . motion was denied. The tenant then gave evidence tending to show that he had paid the rent in full by work, labor and services. The landlord thereafter gave evidence tending to show that the work, labor and services were not of the value charged and were, not authorized by her. At the close of the evidence the tenant renewed his motion for dismissal on the. same, grounds, and the motion was denied. The justice thereafter, and on the 10th day of June, 1899, made a- final order, awarding possession of the premises to the petitioner on the sole ground “ that said tenant remains in possession of the premises described in the .petition in this proceeding after the expiration of his term.”
Frank S. Coburn, for the appellant.
H. D. Parsell, for the respondent.
The provision of the lease with reference to an extension of the term is somewhat indefinite, but not sufficiently so to render it void
p. 103for uncertainty. It at least gave the tenant the privilege of a further term of one year at the rental specified for the first year.
(Voege v.
Ronalds, 83 Hun, 114 ;
Tracy v.
Albany Exchange Co., 7 N. Y. 472 ;
Western Transportation Co. v. Lansing, 49 id.. 499 ;
Kolasky v.
Michels, 120 id. 635 ;
Smith v.
Littlefield, 51 id. 539 ;
Pugsley v.
Aikin, 11 id. 494 .)
The holding over by the tenant for the period specified was sufficient evidence of an election on his part to accept the privilege of an extension for one year under the lease, inasmuch as the lease did not require any other notice of such election. (Voege v, Ronalds, supra; Kelso v. Kelly, 1 Daly, 419 , 424; McAdam Landl. & Ten. [3d ed.] § 157.)
The lease under consideration gives the landlord the .right to “ re-enter ” or “ resort to any legal remedy for the tenant’s failure to pay the rent as agreed; but it does not in terms provide that such failure will ipso facto terminate the tenancy or effect a forfeiture or cancellation of the lease. In such case the term does riot expire by its own limitation. The landlord might have terminated the lease by making a common-law demand (Section 1504, Code of Civil Procedure, would not be applicable as. rent was not due six months before April 1, 1899) for the rent and giving notice of her election to declare the forfeiture and might then have brought an action of ejectment to obtain possession; but then the léase would terminate, not by expiration of the term, but by the election and act of the landlord, and consequently summary proceedings would not lie. (Beach v. Nixon, 9 N. Y. 35 ; Miller r. Levi, 44 id. 492; Kramer v. Amberg, 15 Daly, 205 ; Kramer v. Amberg, 53 Hun, 427 , 429; Horton v. N. Y. C. & H. R. R. R. Co., 12 Abb. N. C. 30 ; affd., 102 N. Y. 697 ; Penoyer r. Brown 13 Abb. N. C. 82 ; Estelle v. Dinsbeer, 9 Misc. Rep. 487 .)
The proceeding was instituted on the theory that the tenant’s term expired at the end' of the first year. It was not contended, however, that the provision of the lease giving the tenant the right to an extension was unenforcible, but it was claimed that the payment of the rent according to the tenor of the lease for the first year was a condition precedent to the tenant’s right to elect to hold for a longer term. It is claimed that the justice, has found, in accordance with the petitioner’s theory, that the tenant failed to
p. 104pay the rent for the first year,, and that he thereby lost the right of exercising the-privilege, conferred by the lease, of holding for a. further term. No authority is cited to support this proposition,. and we fail to .appreciate its force. If the-tenant defaulted in ‘the-payment of rent for the first year, such default occurred on or .before the 1st-day of November,-1898. The landlord was then at-liberty to proceed to declare a forfeiture or she cotild waive such right and acquiesce in the continuance of the tenancy. She took jno step to terminate the lease Until after the tenant had. remained in possession upwards of six weeks under his election to hold for a further term.
It follows from these views that the judgment of the County Court and the final order of the Justice’s-Court must be reversed, with costs to the- appellant. •
All concurred.
• Judgment .of County Court and final order of Justice’s Court reversed,, with costs:. -