Woolsey v. Donnelly — 24 N.Y. St. Rep. 271

Majority

p. 271

Edward J. Woolsey, App’lt, v. James Donnelly, Respt.

(Supreme Court, General Term, Second Department,

Filed May 18, 1889.)

Headnote

IiAEDLOBD AND TENANT—CONDITIONS OE LEASE.

A tenant had occupied premises for a year under an agreement to vacate on ninety days’ notice, when.the landlord insisted on fixing the length of notice at sixty days, and lowered the rental, and the tenant replied, “ Your terms are accepted at” the reduced rental. Held, that this was an acceptance of the sixty days’ notice, and a continuance of the lease, made thereafter for another year, “ on same conditions,” included the sixty days’ notice.

Appeal from judgment of the Queens county court, reversing a judgment of a justice of the peace, awarding the landlord possession of land, in a summary proceeding before him to recover possession after the expiration of tenant’s term.

8. B. & D. Noble (Norman T. M. Mellis, of counsel), for app’lfc; Knevals & Perry (Edward J. Knauer, of counsel), for resp’fc.

The only question on this appeal is one of fact. The plaintiff owns a farm in Queens county. The defendant, as tenant, occupied the same for over nine ■ years. In November, 1885, the rent was fixed for one year, beginning March 10, 1886, at $110- per month, with an agreement to vacate on sixty days’ notice. That was the proposal by the landlord, and the tenant replied that sixty days was a short time, and suggested that the landlord could make it ninety days.

On the 4th of March, 1886, the length of notice to vacate was fixed at ninety days. On the 1st of March, 1887,the landlord insisted that the length of notice should be fixed at sixty days, and the rent was lowered to ninety dollars per month. This was accepted by the tenant. He replied to the letter of the landlord, “your terms are accepted at $1,080 a year.” This was an acceptance of the sixty days’ notice instead of the ninety days’ clause of the previous lease.

On the 10th of December, 1887j the lease was continued another year, from March 10, 1888, “on same conditions.”

This referred to the lease for the preceding year.

This is the inference in the absence of an agreement, and the agreement only expresses the legal inference in the absence of an agreement.

The case turns wholly on the fact whether a sixty or ninety days’ notice was required. The judgment of the-justice was, therefore, right, and his judgment should be affirmed, with costs.

p. 272

_ Judgment of county court reversed, and that of justice’s affirmed, with costs.

All concur.

Or Motior to Dismiss Appeal.

The motion to dismiss this appeal because the papers are not certified by the clerk of Queens county should not be granted. These papers are now certified according to the rule. The objection that the case does not contain the order appealed from is not sustained by the case itself. The order appealed from is stated to be the order of 30th of December, 1888, and the formal order of 3d December, 1888, as having been entered, it is very clear that the formal order in the printed book is the only order entered beyond the minutes of the decision of the county judge.

The formal order was entered December 3, 1888.

The motion to dismiss the appeal should, therefore, be denied.