Charles E. Larned, Respondent, v. George Hudson, Appellant

Charles E. Larned, Respondent, v. George Hudson, Appellant. (Submitted January 29, 1875; decided February 9, 1875.) One who enters upon lands by permission of the owner, without any term being prescribed or rent reserved, is a tenant at will, and as such is entitled to the one month’s notice to quit prescribed by the statute (1 R-. S.,. 745, § 7) for the termination of such a tenancy. In an action of ejectment defendant testified, in substance, that he entered under an agreement with the then owner that he might move a building, upon the land and occupy it such time as he wished, or until he should purchase or build a house of his own and then should leave the building for the use of the lot. No notice to quit was served. The court directed a verdict for plaintiff. Held, error; that if the agreement was as thus-testified to, defendant was a tenant at will and entitled to notice. Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of the plaintiff entered upon a verdict. The action was ejectment to recover the possession of a lot of land in Brooklyn. The plaintiff derived title, through one A. Wilkie. Wilkiewas a witness for the plaintiff on the trial, and testified that about October, 1868, the defendant was going to put up anew building on Fulton avenue, on land- which lie owned" there, and had an old frame house on that land, which had to-be moved to make room for the new building; that he told witness that if he would make room for this frame house on the lot in question, which was then owned by the witness,, he, the defendant, would put the house there at his own expense, if witness would let defendant occupy the house, until he should complete his new building into which he was going to move himself. That witness assented to this and defendant did pay the expense of moving the frame-house on defendant’s lot. That there was no mention of any rent, hut the bargain was, that when defendant completed his new building he would move in, and the frame house should then belong to the witness, as compensation for the use of the lot. That the defendant’s new building, was completed in May, 1869, but defendant did not move out, and witness did not ask him to move out, but afterward demanded rent of him, from May, 1869, to February, 1870. when witness sold the lot. The defendant testified that the agreement was not that he was to move out when the new building on Fulton avenue was completed. That that building was to be rented, and Wilkie knew it, but the agreement was that defendant should occupy the frame house on the lot in question, such time as he wished to do so, or until he should purchase, or build a house of his own, and then leave the frame house for Wilkie as a present for the use of his lot. Evidence was given tending to impeach Wilkie’s statement of the agreement, by showing inconsistent declarations. And the defendant testified in substance that Wilkie was also to build him a wagon, which defendant understood was for the house, but which Wilkie never furnished. The defendant procured another house in 1871, after the commencement of this action, and then moved out of the frame house. Notice to quit was not given as provided by the statute. On the trial the defendant’s counsel moved for a dismissal of the complaint, on the ground that defendant was a tenant by sufferance or at will, and entitled to one month’s notice to quit, and also asked to go to the jury on the evidence, as to the question whether defendant was to move out when the Fulton avenue property was finished, or when he should purchase or build a new house. Both these applications were denied, and the court directed a verdict for the plaintiff. Exceptions were duly taken, and judgment entered on the verdict. The General Term affirmed the judgment on the ground that the defendant occupied the lot under a license, and not as tenant at will or by sufferance. N. H. Clement for the appellant. Defendant was a tenant at will or by sufferance and entitled to one month’s notice to quit. (1 R. S., § 7, p. 745; 2 Black. Com., 150; 4 Kent’s Com., 110, 116; Rowan v. Lytle, 11 Wend., 616.) The arrangement between defendant and Wilkie was not a license. (Jamieson v. Millemann, 3 Duer, 255.) Ira D. Warren for the respondent. Defendant was not a tenant, and the law applicable to licenses must be applied to his occupation. (People v. Field, 1 Lans., 239, 246; Pierrepont v. Barnard, 2 Seld., 288; Ex parte Coburn, 1 Cow., 570; Wolf v. Frost, 4 Sandf. Ch., 73; 3 Kent’s Com. [9th ed.], 592; Hall v. Babcock, 4 J. R., 417; Babcock v. Utter, 1 Keyes, 405 , Eggleston v. N. Y. and N. H. R. R. Co., 35 Barb., 162; Jamieson v. Millemann, 3 Duer, 255; Harris v. Gillingham, 6 N. H., 9; Smith v. Littlefield, 51 N. Y., 539.) [MAJORITY — Rapallo, J.] Rapallo, J. To sustain this judgment it must be established that neither upon the plaintiff’s version of the arrangement nor upon that testified to by the defendant, did the defendant become a tenant at will or by sufferance. If the arrangement, as testified to by the defendant, created such a tenancy the court erred in not submitting the case to the jury as requested. Independently of the question, whether or not the plaintiff’s evidence established such a tenancy, we are clearly of opinion that if the defendant’s is the true version of the transaction he became a tenant at will. When one enters upon land by permission of the owner for an indefinite period, even without the reservation of any rent, he is by implication of law a tenant at will. (Doe v. Baker, 4 Dev. [N. C.], 220.) If he be placed upon the land as a mere occupier, without any term prescribed or rent reserved, he is strictly a tenant at will. (Jackson v. Bradt, 2 Cai., 169 ; 4 Kent’s Com. [11th ed.], 114, 125; Post v. Post, 14 Barb., 253; Burns v. Bryant, 31 N. Y., 453.) When a householder permitted another to occupy rent free the occupant was held to be a tenant at will. (Rex v. Collett, Russ. & Ry., 498; Jackson v. Bryan, 1 J. R., 322.) In Burns v. Bryant (31 N. Y., 453, supra), the defendant had entered by mere verbal permission of the owner of the land. The court say: “ The defendant was in possession, holding for no particular time, paying no rent, making no compensation for the use of the land, but made agreement to surrender the premises whenever the landlord should require the possession. He was clearly a tenant at will. As such tenant at will the defendant was entitled to one month’s notice to quit and surrender the premises.” A tenant strictly at will was not, prior to the Revised Statutes, entitled to notice to quit, but a demand of possession was sufficient. (See cases above cited, and also, 10 Barn. & Cress., 721; 5 Car. & P., 575; 13 Edw., 210; 5 M. & W., 14.) But by 1 Revised Statutes, page 745, section 7, it is provided that whenever there is a tenancy at will or by sufferance, created by the tenant’s holding over his term, or otherwise, the same may be terminated by the landlord’s giving one month’s notice in writing to the tenant, requiring him to remove therefrom. The statute does not define what shall constitute a tenancy at will, but leaves that question to be determined by the rules of the common law. If the agreement was as testified to by the defendant, that he should occupy as long as he wished or until he should procure another place, no time being fixed for this purpose, it was equivalent to a tenancy at the will of the tenant, and this makes him also tenant at the will of the.lessor. (Co. Litt., § 68.) It is difficult to say that, even under the arrangement as testified to by the plaintiffs witness, the defendant was not a tenant at will, for, if the time until the completion of the new house was a definite term, for which the owner of the land was to receive as compensation the old frame building, the defendant clearly held over by permission of the landlord after the expiration of that term. If it was an indefinite term it was, under the authorities, terminable at the will of either party, and the statutory notice to quit was necessary. The judgment must be reversed and a new trial ordered, with costs to abide the event. All concur. Judgment reversed.