Majority
p. 536Hall against Ballentine. ,ALBANY, Feb. 1811.
Headnote
Where a tenant isilfully holds over, after the term,” and a no-rent. *” dowhleTHE plaintiff, by indenture, dated 2d May, 1808, de 1 ’ f ’ ’ a tenement in the city of New-Tork to the defendant, for one year from, the first of May, 1808, for the rent of 200 dollars, payable quarterly; and the defendant covenanted quietly to surrender up the premises at the end of the year, in good order, &c. The plaintiff, on the 4th of March, 1809, gave the following xvritten notice to the defendant. “ Mr. William Bailen tine, this is to notify you to leave the store and premises noxv in your possession, by the first day of May next ensuing.” The defendant did not surrender the premises, but held over. The only question was, whether the plaintiff was entitled to" double rent, during the time the tenant so held over. The case was submitted to the court xvithout argument.
The statute gives the double rent for xvilfully holding over after the expiration . of the term, and the notice to quit; and here the holding over ,must be considered as wilful. There could be no mistake or pretence of right, nor was any advanced. In Wright v. Smith, (5 Esp. N. P. 203.) there was a boná fide holding over, under a claim of title. Here the act of the tenant
p. 537
was palpably wilful, and the plaintiff is consequently entitled to judgment.[1]
(a) (a) 3 Burr. 1609. 5 Burr. 2654. 1 Esp. Cas. 266. 2 Black, 1075 . 2 East. 310.