Reckhow v. . Schanck , 43 N.Y. 448 ( 1871 )

The defendants ask a reversal of the judgment below, solely upon the ground that they were tenants of the premises at will or by sufferance, and entitled to the statutory notice to quit accorded to tenants of that character. (1 R.S., 745, § 7.)

The title of the plaintiff and her right to the possession are not now otherwise disputed. Other objections and exceptions made and taken upon the trial are abandoned.

It is not claimed that the relation of landlord and tenant between the plaintiff and defendants was created or exists by convention of the parties. There is no evidence that the plaintiff ever recognized the defendants as her tenants, or that the defendants, at any time before or after the commencement of the action, acknowledged the title of the plaintiff, or recognized her as their landlord, or the relation of landlord and tenant as in any way existing between them.

The defendants sought to defend their possession under a lease from third persons, and in hostility to the plaintiff's title; but failing in that, at the close of the evidence asked for a nonsuit on two grounds: 1st. That the plaintiff had not established a sufficient title to the premises to entitle her to recover; and 2d. That if she had, the facts elicited showed that the defendants were tenants at will of the premises, and were at least tenants at sufferance, or entitled to the notice to quit, by the statute in such case made and provided. The defendants now claim that their lessors were tenants at will, or by sufferance of the plaintiff, and that they, by the act and assent of such tenants having acquired the possession of the premises, have thereby become and are the tenants of the plaintiff, holding by the same tenure and entitled to the same notice to quit as those to whose possession they have succeeded. Assuming that the case establishes the relation of landlord and tenant between the plaintiff and Reckhow Hudson, under whom the defendants claim to have acquired the possession and right of possession, which is by no means clear, the result claimed by the defendants by no means follows. A tenant at will is disqualified from granting a lease available against any one but himself; for the demise would amount to a termination of the will, and it would be optional with the landlord to regard the entry of the lessee of the tenant at will as a disseizin. (1 Platt on Leases, 104.) The same rule holds as to a tenant by sufferance. (Id., 122.) The yielding of the possession of the premises terminates the original tenancy, and a new tenancy at the will of the owner cannot be created except by his or her assent. Every lease at will is at the will of both parties, and a tenant at will has no certain and indefeasible estate; nothing that can be granted by him to athird person. If a tenant at will assigns over his estate to another who enters on the land, he is a disseizor, and the landlord may have an action of trespass against him. (1 Greenleaf Cruise, 278; Campbell v. Proctor, 6 Greenleaf R., 12.) A tenancy by sufferance, existing only by the laches of the owner, cannot give the occupant an estate or interest capable of transmission to another. At common-law, a tenant at sufferance is not entitled to notice to quit. There is no evidence that the plaintiff assented to the occupancy of the defendants, or that she had any knowledge of such occupancy prior to the commencement of the action. It is undoubtedly true that when the relation of landlord and tenant is established, it attaches to all who may succeed to the possession through or under the tenant; but this cannot apply to tenancies that are terminated by the very act of transmission of the possession. The defendants have not shown any permission from the plaintiff to enter upon the premises, and they were therefore trespassers, and not entitled to notice to quit.

The judgment should be affirmed.

All the judges, except ANDREWS, J., absent, concurring.

Judgment affirmed.