Jackson v. Parkhurst — 5 Johns. 128

Majority

p. 128

Jackson, ex dem. Van Cortlandt, against Parkhurst and others.

Headnote

Where A. by his attorney, executed afease ?,r’expLten nppiK^tcT’the attorney, to authorised by A. to enter into a new agreemenl, and the attorney replied that he was not, but said that B. might continue in possession of vntii^hE’heard heW, "I'liat EfL Expiration of the tcnEii’t “at'Euf ferance, and not entitled to a notice to quit, previous to an action of ejectment

THIS was an action oi ejectment. I he cause was trjeq at tjle Oneida, circuit, the 5th June, 1809, before Mr. Justice Tates.

At the trial, it was proved, that the lessor of the plaintiff, by his attorney, duly authorised for that purpose, on the 1st April. 1803, executed a lease of the 1 1 1 ’ ’ premises in question to the defendants, for three years* ending on the 1st April, 1806. On the 15th December* 1807, the attorney of the plaintiff sent a written notice , , - , , ,. , r , to the defendants, demanding a surrender of the possession of the premises, and that, if they neglected to. deliver up the possession, they would be answerable for double rent i and that the lessor refused to let them ocCUP7 the premises. The defendants were in possession w]ien this suit was commenced. It appeared, that in 11 ' pune_ ig06, one of the defendants applied to the attor J 1 ney of the lessors, to know if he had received any instructions as to leasing or selling the premises; who replied, that he had not, nor was he authorised to make any new agreement with the defendants, but advised them to continue in possession, until they heard front the lessor. The attorney received no instructions as to a new agreement, until some time in the autumn of 1807, when he was empowered to execute a new lease of the premises to the defendants for seven years; but the defendants refused to accept the lease.

The counsel for the defendants insisted, that the defendants were entitled to a notice to quit, previous to bringing the ejectment; and, under the direction of the judge, the jury found a verdict for the plaintiff, subject

p. 129

tb the opinibn of the court, on the question, whether , , _ , . , / , . the defendants were entitled to such notice.

The case was submitted to the court, without arguBlent.

No notice to quit ivas requisite in this case. After the expiration of the lease, the tenants did not continue in possession by any new agreement with the plaintiff; nor did the plaintiff do any act whatever, from which a renewal of the contract, or a consent to the tenants to hold for a year, could be inferred. The proof is decisive, that the agent, who gave the lease for three years, had no authority to make any new agreement, and that he so declared to the tenants. The defendants were, therefore, no more than tenants at suf-. ferance. There must be a judgment for the plaintiff,.

Judgment for tire plaintiff»