Marsh v. Masterson — 15 Daly (N.Y.) 114

Majority

p. 114

John Edward Marsh, as Executor, &c., Respondent, against Catherine Masterson et al. Thomas O’Callaghan, Jr., Appellant.

(Decided January 7th, 1889.)

Headnote

By custom in this state, which has acquired the force of law, a lease of premises, “ for the term of one year from the first day of May,” terminates on the first day of the following May at noon.

The lessor in such a lease, claiming that the lease expired at midnight on April 30th, commenced summary proceedings against the tenant on May 1st before noon. Held, that the final order therein entered in favor of the lessor should be set aside with costs; but that restitution should not be awarded, it appearing that the tenant had only a reversionary interest after the discharge of a receiver then in possession.

Appeal from a final order of the District Court in the City of New York for the Eleventh Judicial District, made in summary proceedings for the recovery of possession of demised premises.

The order awarded possession of the premises to the landlord. Thomas O’Callaghan, Jr., one of the assigns or subtenants, appealed therefrom to this court.

Henry Daily, Jr., for appellant.

H. A. Kimmelman, for respondent.

[Present, Van Hoesen and Bookstaver, JJ.]—The proceedings were begun by the presentation of the petition of the landlord on the 1st of May, 1888, at 10:10 A. M. This petition alleged that the hiring was “ for the term of one year commencing on the 1st of May, 1887, and ending on the thirtieth of April, 1888, at midnight, and that'the appellant and others held over, etc., without permission, etc. The precept was forthwith issued and served on the tenant, the appellant, and others. It was made returnable at 3:30 p. m. of the same day. At that time the appellant appeared and filed an answer denying that he held over, etc. Further proceedings were then adjourned by consent of parties until the 4th of May, when there was a hearing before the justice. The lease under which the tenants held was introduced in evidence, and from it, it appeals that the premises were devised “ for the term of one year from the first day of May, one thousand eight hundred and eighty seven, at the yearly rent of eighteen hundred dollars, to be paid in equal quarter-yearly payments in advance on the first days of May, August, November, and February.”

The question is whether under this lease the term ended on the 30th day of April at midnight, or the 1st day of May at noon.

In this state it may be considered settled, by a custom which has acquired the force of law, that all tenancies commencing on May 1st, for one year, terminate on the 1st day of the following May at 12 m. (McAdam’s Landlord & Tenant, 2nd ed., 188; Wilcox v. Wood, 9 Wend. 346 ). In the latter case, Savage, Ch. J., said: “ If the good people of Albany have settled it by custom of sufficient age to give it the sanction of authority, they have done more than the courts have been able to do; and if they have settled the point that such a lease commences and terminates at twelve at noon on the 1st of May, in my opinion they have settled it as it should be. . . . A uniform custom becomes common law. . . If, under leases in the usual form from the 1st of May to the 1st'of May, it has been immemorial usage to interchange possession at twelve o’clock, noon, it seems to me unobjec

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tionable, not as a construction of the instrument but as a practical construction of rights under it..... Strict compliance with the letter of the lease, whether it includes or excludes the dajr, would compel those who change tenements to move in the night or remain one night in the street. Such an absurdity was never intended.”

This being the practical construction of the rights of the parties under such a lease as determined by custom and law, we think that the proceedings were commenced before the expiration of the term of the lease, and that the final order should be reversed as far as the party appealing is concerned, with costs.

But as a receiver had been appointed by the court, who at that time was in possession- and entitled to the possession of all of O’Callaghan’s interest in said lease and the premises demised, as the latter had only a reversionary interest in the premises after the discharge of the receiver, who has not yet been discharged, as far as we are aware, although the lease has long since expired, we do not think it proper to award a restitution of the premises.

Order reversed as to appellant, with costs.

Cases cited

Wilcox v. Wood 9 Wend. 346 N.Y. Sup. Ct. p. 114