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Buchanan v. Whitman

27 N.Y.S. 604 Court N.Y. Gen. Term Decision date 1894-02-12 English

Delivered by CULLEN, J.

Contents

Majority

p. 604
BUCHANAN v. WHITMAN.
(Supreme Court, General Term, Second Department.
February 12, 1894.)

Headnote

1. Lease—When Term Expires.
A lease dated April 8th, “to extend for one year from the date hereof,” terminates at the expiration of April 7th, in the next year.
2. Same—Renewal.
Where a lease to two tenants as partners provided for renewal at the end of the term, and the partnership was dissolved, and one partner alone remained in possession of the premises, the tenant in possession cannot compel the landlord to renew the lease to him alone.
Appeal from Orange county court.
Summary proceedings by James A. Buchanan against Stephen M. Whitman to recover possession of certain premises in the village of Port Jervis. Defendant entered under a lease dated April 8, 1892, “to extend for one year from the date hereof.” From a judgment of the county court reversing a judgment of the justice of the peace in favor of plaintiff, plaintiff appeals. Reversed.
Argued before PRATT, DYKMAN, and CULLEN, JJ.
H. B. Fullerton, for appellant.
Lewis E. Carr, for respondent.

This is an appeal from a judgment of the county court which reversed a judgment for the plaintiff in summary proceedings to recover demised premises. We think that' the lease included the 8th day of April, and terminated at the expiration of the 7th day of April the next" year. The weight of authority in this state includes the day of the date of a lease in the demised prem

p. 605
ises, unless the instrument showed a contrary intention, or custom a different usage, though it must be confessed that there is no very clear adjudication on the question. Wilcox v. Wood, 9 Wend. 346 ; Deyo v. Bleakley, 24 Barb. 9 ; People v. Robertson, 39 Barb. 9 . In Mack v. Burt, 5 Hun, 28 , the lessee was to have possession “from and after May 1st.” This expression unquestionably excluded the 1st of May, but it is not an authority for this case. The lease gave the tenants a right of renewal. But the lease was made to two tenants, and the partnership between them had been dissolved pridr to the expiration of the original term. It appears that Whitman alone remained in possession. He could not renew the lease without the consent of his cotenant, and the landlord was not bound to renew the lease to him alone. James v. Pope, 19 N. Y. 324 . On tire conceded facts, therefore, we think that the plaintiff was entitled to recover. The judgment of the county court should be reversed, and that of the justice affirmed, with costs. All concur.

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