Woodrow v. Michael ( 1865 )

Campbell J.:

Defendant in error brought proceedings to evict plaintiff in error, as a tenant holding over after the expiration of his term. He showed, in the Court below, a tenancy from month to month, on the understanding that the tenant should give up possession whenever the landlord should want the premises for his own use. The tenant failed, on demand, to yield possession — no notice having been given to terminate the tenancy, which he claimed to be an ordinary tenancy at will. The Court below charged that it was an estate which terminated on the happening of a contingency, without notice, and that the tenant held over wrongfully after such contingency occurred.

Without stopping to inquire whether an estate for an indefinite period, but terminable upon a contingency, can be created under our statute, by parol, we think that, where the alleged contingency consists merely in 'the expression of the landlord’s desire ■ to resume the estate to his own enjoyment, the case is the simplest illustration of a mere tenancy at will, and comes strictly within its definition. It can only be determined by notice, which, in this case, should have been a full month’s notice to quit, at the expiration of one of the monthly periods fixed for the payment of rent. The case is within the principle of Huyser v. Chase, decided at the last term.

Judgment must be reversed, with costs, and a new trial must be granted.

Christiancy and Cooley JJ. concurred.