Marsh v. Masterson — 22 N.Y. St. Rep. 40

Majority

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John Edward Marsh, as Executor, etc., Landlord, v. Catharine Masterson et al., Tenants.

(New York Common Pleas, General Term,

Filed January 7, 1889.)

Headnote

1. Landlord and tenant—Lease—Expiration—Custom.

A letting “for the term of one year from the 1st day of May, 1887,” ends on the 1st day of May following, and not on the 80th day of April, at midnight.

3. Same—Summary proceedings to recover possession—When prematurely COMMENCED.

Summary proceedings commenced on the last day of April are premature. Although the landlord has been awarded possession under such proceedings thus commenced, the court will not grant the tenant restitution, where it appears that a receiver was at the time in possession and entitled to the tenant’s interest, the tenant having nothing but a reversionary interest, after the receiver was discharged.

Appeal by Thomas O’Callaghan, Jr., one of the assigns or. sub-tenants,' from a final order in summary proceedings awarding possession to the landlord of the premises on the southeast corner of Seventh avenue and Fifty-eighth street.

H. Daily, Jr , for app’lt; H. A. Kimmelman, for resp’t.

—The proceedings were begun by the sentation 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 ended on the 30th 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 fourth 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 appears that the premises were devised “for the term of one year from the 1st day of May, 1887, at the yearly rent of $1,800, 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 thirtieth day of April, at midnight, or on the first 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 first, for one year, terminate on the first day of the following May, at 12 ■ M. McAdam’s Landlord and Tenant (2d ed.), 188; Wilcox v. Wood, 9 Wend., 346 .

In the latter case, Savage, Ch. J., said: “If the good

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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, noon, on the first day 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 first of May to the first of May, it has been immemorial usage to interchange possession at twelve o’clock, noon, it seems to me unobjectionable, 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 day, 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 léase 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.