Mack v. Burt

Upon the referee’s findings upon the facts, I think his conclusion of law, that the plaintiff was entitled to recover at the rate of $600 a year for the use of the premises, correct, and that she was entitled to recover for the seventy-five dollars, with interest thereon from November, 1872, within the cases of Despard v. Walbridge (15 N. Y., 374), and Schuyler v. Smith (51 id., 309, 214). These cases hold, in effect, that a tenant of demised premises, holding over after the expiration of his term, is deemed in law to hold over as tenant at the same rent he had previously paid, if no new agreement is made. But if he has notice from the landlord that if he retains possession he must pay a higher rent, specified as to amount at the time, and he remains- in possession, he must be deemed to assent to pay such increased rent; that he cannot hold the premises after such notice, and fix his own terms for the rent. The defendant held over as tenant to the plaintiff. He recognized that relation in November, 1872, and paid $225 on rent at that time, the plaintiff receiving it as rent, but claiming seventy-five dollars more as then due. But this sum, with interest thereon, was all that was due when this action was commenced. The referee finds that the deeds under which the plaintiff took title to said premises, contained the following clause, to wit: “ Said party of the second part to have use and possession of said premises from and after May 1st, 1872.” These words exclude the first day of May from the.term for which the defendant took, or must be deemed to have taken, the said premises, as tenant of the plaintiff. The second half-year of said term did not expire till the first day of May, 1872. The defendant was not liable to be sued for such rent until the second day of May. The case states, and the referee finds as a fact, that this action was com-*31rnenced on the first day of May. It was therefore prematurely commenced for the last half of the year’s rent. This objection was available under the pleadings, for the answer contains a general denial of each and every allegation, of the complaint. Under such an answer, the defendant, I thinlc, denied in effect every fact essential to make out a cause of action against him at the time of the commencement of the suit, and may disprove any such allegation. This question, in Smith v. Holmes (19 N. Y., 271), arose upon demurrer to the complaint, and the court held that neither the summons nor complaint showed when the action was commenced, and that the sheriff’s certificate of the service of the summons was no part of the record before the court upon demurrer, and that the question could only be raised by answer. It is sufficiently raised by an answer which contains an explicit denial, in effect, that the plaintiff had any cause of action against the defendant. The answer necessarily relates to the time of the commencement of the suit. In this case, the fact was proved and found by the referee, and it does not appear that any objection was made to the evidence, and I think no valid objection could be raised.

The judgment should be reversed and new .trial granted, with costs to abide the event.

Judgment reversed and new trial granted, costs to abide event.