So many elements important to bear in mind arise in connection with these decisions that here may be the place for a brief survey of pertinent phases of the law as it stood before the enactment of the emergency laws, and of some additional topics previously touched upon.

The Court of Appeals of this State decided in 1913 17 that a new tenant could not maintain summary proceedings to oust an old tenant holding over after expiration of his term, since the conventional relation of landlord and tenant did not exist between them. It was held that the landlord, despite the fact that he had made a new lease, beginning at the expiration of the "holdover's " term, could still maintain such dispossess proceedings, and that he alone had that right. The court had held previously, however, that the new lessee had the right to treat the old tenant holding over as a tenant for a new term arising by operation of law, and to recover rent from him.18 In explaining the reason for giving the new tenant this latter right, the court declared:

"The right of the landlord to treat the holdover as a tenant for a new term does not spring from the contract of the parties but is the penalty imposed by law upon the trespassing tenant." 19

EFFECT OF NEW LAWS ON RIGHT TO REGARD HOLDOVER TENANT AS TRESPASSER-OLD LAW CONTRASTED

As the tenant of particular property under the protection of the Housing Laws is given the right by those laws to hold over, he cannot be regarded as a trespasser in doing so.

17 Eels v. Morse, 208 N. Y. 103.

18 United Merchants' Realty and Impt. Co. v. Roth, 193 N. Y. 570.

19 Chief Justice Cullen in United M. Realty & Impt. Co. v. Roth, supra. See also Souhami v. Brownstone, 189 App. Div. 1; Stern v. Avedon, 194 App. Div. 433, 185 N. Y. Supp. 392, aff'd in Ct. of Appeals, 231 N. Y. 38 (Mem.).

It would seem, therefore, that so long as the present Housing Laws are operative the old decisions must be examined with care and the basic reasons therefor ascertained in order to see if they apply to the new situation existing.

Under the law prior to the enactment of the Housing Laws, the tenant, by remaining in possession, did not thereby secure the right to a new term. He was regarded, as we have stated, as a trespasser, and his right only came into existence if the landlord elected to allow him to remain and accepted him as a tenant. When the landlord accepted him, the election was conclusive upon both parties. 20

The law thereupon implied a lease for a new term of one year, subject to the covenants and conditions of the former lease, except as changed. As has been previously stated, 21 a tenant by remaining in after notice from the landlord of an increase in the rent, became liable for the increased rent, upon the theory of a consent implied by the law from the fact of his holding over after such notice.22

At the present time, in respect to business property, which does not come under the protection of the Housing Laws, a tenant who remains in after due notice of an increase, must be held to have agreed to pay the advanced rent. 23

20 Stern v. Avedon, supra.

21 Supra, page 195.

22 Stern v. Avedon, supra; United Merchants' Realty & Imp. Co., supra, citing Despard v. Walbridge, 15 N. Y. 374; Coit v. Palmer, 51 N. Y. 647; Preston v. Hawley, 139 N. Y. 296; Stein v. Sutherland (App. Term, 1st Dept.), 92 N. Y. Supp. 314; Scully v. Roche (App. Term, 1st Dept.), 76 Misc. 458, 135 N. Y. Supp. 633; Farrell v. Woodward (App. Term, 1st Dept.), 101 Misc. 560, 167 N. Y. Supp. 605; Commercial Cable Co. v. McKenna, 168 N. Y. Supp. 13 (App. Term, 1st Dept.). Stern v. Avedon would seem impliedly to overrule the decision in St. James Apartments, Inc., v. Finke, 181 N Y. Supp. 356 (App. Term, 1st Dept.).

23 Paccione v. Sedita, No, 11, App. Term, 2nd Dept., May 2, 1921, not reported.

The landlord's right to elect to continue the tenancy was not affected by the fact that the tenant had refused to renew the lease and had given notice that he had hired other premises. It was not within the power of the tenant alone, if he held over, to throw off the character thus imposed upon him by the law. 24

A tenant by holding over after a definite term for a brief period, without the consent of the landlord, did not thereby become a tenant at sufferance and entitled to notice to quit.2

25

MONTHLY TENANTS, HOW AFFECTED

In the case of monthly and month to month tenancies in New York City, the law requires a notice of termination to be served before the tenant may be removed.26 If no such notice of the landlord's election to end the tenancy is given, such tenancies have been deemed to continue for another month upon the previous terms. As we have seen in a previous chapter, even under the emergency laws removal proceedings may not be begun unless such notice has been given. 27

The question has arisen whether such notice need be given a monthly tenant, or one from month to month, where the landlord desires not be remove him, but to recover a "fair and reasonable rent " under the emergency statute. 28 It has been held that the statutory notice is required to be given only where the tenant is to be removed; that the

24 Schuyler v. Smith, 51 N. Y. 309.

25 Smith v. Littlefield, 51 N. Y. 539, where at page 541 will be found a statement of the rights of landlord and tenant at common law.

28 Laws of 1882, chapter 303, as amended by Laws of 1920, chapter 209. The notice now required is of thirty days.

Supra, Chapter VIII, page 96.

28 Laws of 1921, chapter 434, § 4.

emergency laws prevent his removal; that, therefore, it would be a fruitless formality to require the giving of such a notice as a prerequisite to permitting the landlord to sue for what the emergency law contemplates he should be entitled always to get, namely, a "fair and reasonable rent." 29

There is something to be said on the other side of this proposition. The tenant ought to have some notice of the landlord's determination to end the monthly tenancy, even though by that notice, in view of the rent laws now existing, the tenant's right to continue in possession would not be affected. "A monthly tenant has the right to rely upon the law fixing his rights and liabilities for remaining in possession after his month expires." 30

By requiring the notice to be served as required by the statute 31 the tenant is put upon guard that if he does not remove, the landlord may claim a rent other than theretofore agreed upon. It may be noted that prior to the enactment of the present Housing Laws it was held that, in the absence of the requisite notice, a monthly tenant could not be removed. 32

The act requiring notice "imposes certain protective duties which must be observed. Their observance secures fair play, and nothing more." 33 However, the law must be

29 Rogan v. Weiss (App. Term, 1st Dept.), 115 Misc. 193, 187 N. Y. Supp. 443, in effect overruling the decisions of the Municipal Court holding to the contrary on this point: Machson v. Katz, 187 N. Y. Supp. 411 (Robitzek, J.), and Fisher v. Rabinowitz, 112 Misc. 78, 182 N. Y. Supp. 500 (Marks, J.). The foregoing cases all deal with monthly tenancies, but the reasoning would appear clearly to be equally applicable to tenancies from month to month. See also, Mitchell v. Fabietti (App. Term, 1st Dept.), 188 N. Y. Supp. 877. Fisher v. Rabinowitz, supra.

31 Laws of 1920, Chap. 209.

32 Miller v. Lowe, 86 N. Y. Supp. 16.

33 McAdam on Landlord & Tenant, vol. 3 (3rd Ed.), p. 143, cited with approval in Miller v. Lowe, supra.

regarded as it has been first stated, that a monthly tenant may be held for reasonable rental value without any notice from the landlord.34

IMPROPER TO DISMISS, WHERE SOME VALUE IS ESTABLISHED

Where the action is brought to recover the reasonable value of the use and occupation of leased premises, it is improper for the court to dismiss the case where, in the opinion of the court, the landlord has not made out a case for the full amount sued for, but the evidence warrants a finding for a sum less than claimed. Judgment should be awarded for the amount which the evidence shows would represent the reasonable value of the premises for the period involved. 35

RENT RECOVERABLE LIMITED TO TIME SUIT IS COMMENCED

The landlord's right to recover is limited to the amount of rent due and owing when the action was commenced. 36 It is improper to permit an amendment of a complaint to include a demand for the recovery of rent for two months succeeding the commencement of the action. 37

A tenant continues liable for rent until evicted by his landlord. Upon eviction by the landlord, the liability under the lease is terminated. In many leases, however, by virtue of special clauses, the tenant's liability for loss suffered by 34 Rogan v. Weiss and Mitchell v. Fabietti, supra. It should be noted that this problem does not arise in the case of yearly tenancies, as the law never required special notice to terminate such tenancies. See 17 and 19 East 95th Street, Inc., v. Bernstein (Mun. Ct., N. Y. City, Lauer, J.), 114 Misc. 513, 186 N. Y. Supp. 916.

35 Brennan v. McCallum (App. Term, 1st Dept.), 189 N. Y. Supp. 197, citing Shuck v. McCarthy (App. Term, 1st Dept.), 189 N. Y. Supp.195. See supra, page 196, and infra, pages 209, 243.

"Campbell v. Poland Springs Co., 196 App. Div. 331, 187 N. Y. Supp. 643, 649 (App. Div., 1st Dept.), citing cases.

37 Id., p. 649.