§ 207. Married woman may release dower by attorney. A married woman of full age may release her inchoate right of dower in real property by attorney in fact in any case where she can personally release the same.

Formerly section 187, Real Property Law of 1896, chapter XLVI, General Laws:

§ 187. Married woman may release dower by attorney.-A married woman of full age may release her inchoate right of dower in real property by attorney in fact in any case where she can personally release the same.97 Formerly chapter 599, Laws of 1893, as follows:

AN ACT relating to powers of attorney of married woman. Approved by the Governor May 5, 1893. Passcd, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Any married woman of the age of twenty-one years, or more, may execute, acknowledge and deliver her power of attorney for the release of her inchoate right of dower in real estate situated in this state, in all cases where such married woman may now execute such release. § 2. This act shall take effect immediately.98

Comment. At the common law a married woman could not appoint or constitute an attorney.99 When empowered to appoint an attorney, on general principles she could not do by another what she herself might not do. We have seen that she may not release her dower to a stranger to the title. In 1878, an adult married woman was authorized by statute to appoint an attorney in fact,2 and under this act it was held that she might appoint her husband her attorney to release her dower to a grantee of the husband." In 1893 an adult feme covert was by the act set out above specially authorized to release her inchoate right of dower by attorney in all cases where she herself could release it. But this act only gave expression to the former law as stated in Wronkow v. Oakley. A married woman cannot yet personally release her dower to a stranger to the title, and, therefore, she cannot appoint her husband to so release it for her. Omitted Sections of this Article. the Real Property Law between 97 Repealed by Real Prop. Law of 1909, $460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 98 Repealed, chap. 547, Laws of 1896. 99 Hardenburgh v. Lakin, 47 N. Y. 109, 113.

1 Supra, p. 738.

There are at present no sections of 207 and 220.

2 Chap. 300, Laws of 1878.

3 Wronkow v. Oakley, 133 N. Y. 505, affg. In re Wolff, 19 N. Y. Supp. 51.

4 See the act at the head of this page, and Platt v. Finck, 60 App. Div. 312.

ARTICLE 7.

Landlord and Tenant.

SECTION 220. Action for use and occupation.

221. Rent due on life leases recoverable.

222. When rent is apportionable.

223. Rights where property or lease is transferred.
224. Attornment by tenant.

225. Notice of action adverse to possession of tenant.

226. Effect of renewal on sub-lease.

227. When tenant may surrender premises.

228. Termination of tenancies at will or by sufferance, by notice. 229. Liability of tenant holding over after giving notice of intention

to quit.

230. Liability of tenant holding over after receiving notice to quit. 231. Lease, when void; liability of landlord where premises are occupied for unlawful purpose.

232. Duration of certain agreements in New York.

§ 220. Action for use and occupation. The landlord may recover a reasonable compensation for the use and occupation of real property, by any person, under an agreement, not made by deed; and a parol lease or other agreement may be used as evidence of the amount to which he is entitled.

Formerly section 190 of the Real Property Law of 1896:

$ 190. Action for use and occupation. The landlord may recover a reasonable compensation for the use and occupation of real property, by any person, under an agreement, not made by deed; and a parol lease or other agreement may be used as evidence of the amount to which he is entitled.5 Section 190 was formerly 1 Revised Statutes, 748, section 26:

§ 26. Any landlord may recover in an action on the case, a reasonable satisfaction for the use and occupation of any lands or tenements, by any person urder any agreement not made by deed: and if any parol demise or other agreement, not being by deed, by which a certain rent is reserved, shall appear in evidence on the trial of any such action, the plaintiff shall not on that account be debarred from a recovery, but may make use thereof as evidence of the amount of the damages to be recovered.

Comments. The present article of the Real Property Law, like the Revised Statutes, by no means exhausts the law regarding landlord and tenant in their reciprocal relations. It simply codi

5 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. Repealed, chap. 547, Laws of

7 Tit. IV, chap. I, part II, R. S. "Of Estates for Years and at Will, and the Rights and Duties of Lanalords and Tenants."

8

fies some great statutes, several of them of early origin. The section now under consideration treats of the remedy for use and occupation in cases where the common law gave none, or a most imperfect one at best.

The Conventional Relation of Landlord and Tenant. The term "landlord" indicated primarily the lord of the fief," but by a series of historic gradations, the term has come to denote an owner of an estate in real property, or of an interest therein, when considered in relation to some one else who occupies or holds under such owner. In reference to the latter person, called the "tenant," such owner is the "landlord." The relation of landlord and tenant is wholly conventional and relative,10 and we now never speak of an owner of land who has no tenant as a "landlord." The modern terms "lessor" and "lessee" also denote the same relation, but ordinarily connote a more certain and formal demise, usually in writing, although no writing be necessary to the validity of the demise. But the relation of landlord and tenant does not always subsist between an owner and an occupier. A mere license, such as a right to use the wall of a building, or a desk in an office, does not constitute a tenancy or give the licensee an estate for years.11

The present modern remedies for use and occupation,12 or possession, are wholly predicated of this conventional legal relation of landlord and tenant,13 and when the relation ceases, the right to rent ceases,14 unless there is some contract that it shall not cease.15 Between a landlord and a tenant there is always a tenure of some kind subsisting,16 for neither the Revised Statutes 17 nor the Constitution of the State abolish tenure, but feudal tenure only; 18 the lands themselves alone being made allodial.19 The conventional

8 Vide, supra, pp. 166, 167, under § 30, Real Prop. Law, Estates for Years," and pp. 191, 192, under § 31, Real Prop. Law, "Rents Reserved on Estates in Fee."

9 See introduction to Comyn, Landlord & Tenant (2d ed. London), I seq.

10 Hosford v. Ballard, 39 N. Y. 147, 151.

11 Eaton v. Hall, 43 Misc. Rep. 153, and cases there cited; Manheimer v. Gudat, 55 id. 330; sed cf. United M. & R. Imp. Co. v. N. Y. Hippodrome, 61 id. 308.

12 Sylvester v. Ralston, 31 Barb. 286; Collyer v. Collyer, 113 N. Y. 442.

13 Burnet v. Scribner, 16 Barb. 621; Deuel v. Rust, 24 id. 438; People ex rel. Hubbard v. Annis, 45 id. 304; Wilson v. Martin, 1 Den. 602. 14 Hall v. Gould, 13 N. Y. 127; Michaels v. Fishel, 19 id. 381, 386; McCready v. Lindenborn, 172 id. 400, 406.

15 Michaels v. Fishel, 169 N. Y. 381, 388; Yannuzzi v. Grape, 46 Misc. Rep. 559; Pannuto v. Foglia, 55 id. 244.

16 Saunders v. Hanes, 44 N. Y. 353, 361.

17 I R. S. 718, § 3.

18 Const. of 1895, art. 1, § 11. 19 Const. of 1895, art. 1, § 12.

relations of tenure and of landlord and tenant usually, though not necessarily, subsist only in connection with terms of years, which grew up subsequent to the feudal settlement, and such tenancies are, therefore, not feudal in origin. The rights of the tenant for years pushed themselves into legal recognition as "estates " only by force of statutes, and not by the feudal or common law.20 But in New York, with its historic "perpetual or manor leases," reserved on estates in fee,21 rent is apt to be regarded as a sign of the conventional relation of landlord and tenant.2 22 Yet perpetual rents may be reserved on grants of estates in fee where no relation of landlord and tenant exists.

Rent may be nominal or rent service. Rent is not of feudal origin, but is associated, at first, with the non-military or socage tenure,23 so that in the nominal abolition of feudal tenures in New York, rent and the incidents of socage tenure were always saved.24 Rent Reserved to Whom. By the common law, rent may be reserved only to the grantor and his assigns, not to a stranger.25 It may not be reserved to the grantor's widow, for that is a testamentary disposition.20

Rent Passes With Reversion. Rent reserved passes with the reversion in the absence of any other disposition.27

Account of Section 220, Supra. This section when in the Revised Statutes,28 was taken from the New York Revised Laws of 1813,29 which in turn came from the statute of 1787,30 re-enacting a colonial statute on the same subject.31 The history of the remedy for use and occupation is not very ancient. The colonial statute re-enacted the statute of II George II (Chap. 19, § 14) almost verbatim. The object of the statute II George II (Chap. 19, § 14) was to furnish landlords with a better remedy than any the common law afforded. How far an action for use and occupation would lie, by the common law, independently of this statute has been de

20 Supra, pp. 152, 156; Challis, 6, 46, 47.

21 Supra, pp. 190-201.

22 Saunders v. Hanes, 44 N. Y. 353; and see p. 195, supra.

23 Dalrymple, Feudal Prop., chap. II; supra, p. 164

24 Const. of 1894-5, art. 1, § 11; see above, p. 82.

25 Burton, Real Prop., $ 1102; cf. Hawley v. James, 16 Wend. 154, 155, and p. 449, supra.

26 Priester v. Holock, 70 App. Div. 256, 259; cf. Boon v. Castle, 61 Misc. Rep. 474.

27 3 Kent, Comm. 463; Berstein v. Koch, 52 Misc. Rep. 550.

28 § 220, supra; 1 R. S. 748, § 26.
29 1 R. L. 444, § 31.
30 2 J. & V. 241, § 31.

31 Chap. 14, Laws of 1774; II Geo. II, chap. 19, § 14; Vernam v. Smith, 15 N. Y. 327, 330; Preston v. Hawley, 139 id. 296, 300.

bated.32 It was, however, the better opinion that an action on the case did not lie for rent, as it was a matter savoring of the realty, and debt was the proper remedy,33 except after the expiration of the tenancy, when assumpsit might lie.34 The statute II George II meant to provide an easy remedy, in the simple case of actual occupation, leaving more complicated cases to their ordinary remedy.35 When the revised Statutes was enacted a Code of Procedure had not been thought of, and the common-law practice still prevailed. The object of the present re-enactment of this section is not to modify practice, since all rights are redressed by the same form of action under the Code of Civil Procedure, but is to establish a plain remedy where the common law gave none, or a doubtful one. When Action for Use and Occupation Lies. Under the Revised Statutes and the Revised Laws, and even at the present day, it is held that an action for use and occupation, by virtue of this statute, lies only when the conventional relation of landlord and tenant exists.36 It lies where the holding is on an implied, as well as on an express, permission of the landlord,37 and formerly against tenants who held over, whether originally the tenancy was by deed or oral.38 The conventional relation of landlord and tenant may be implied; it exists where he who is in possession has recognized the other as his lessor, in some such way as to entail the legal obligations of tenancy.39 It does not exist when the occupant is

32 Bigelow, Estoppels (2d ed.), p. 350, and see under next section.

33 Archbold, Landl. & Ten. 148. 34 Comyn, Landl. & Ten. 435; cf. Preston v. Hawley, 139 N. Y. 296, 300.

35 Comyn, Landl. & Ten. 436.

36 Lalor, Real Prop. 301; Hall v. Southmayd, 15 Barb. 332; Sylvester v. Ralston, 31 id. 286; Smith v. Stewart, 6 Johns. 46; Bancroft v. Wardwell, 13 id. 489; Preston v. Hawley, 101 N. Y. 586; s. c., 139 id. 296; Collyer v. Collyer, 113 id. 442; Lamb v. Lamb, 146 id. 317, 323; Bigelow v. Bigelow, 75 App. Div. 98; Ettlinger v. Degnon-McLean Cont. Co., 42 Misc. Rep. 215; Benedict v. Jennings, 47 id. 134.

37 Osgood v. Dewey, 13 Johns. 240; Lalor, Real Prop. 301.

38 Abeel v. Radcliff, 13 Johns. 297; 15 id. 505. See all the earlier New

York cases cited, Lalor, Real Prop. 301-304; Evertson V. Sawyer, 2 Wend. 507; Rosenberg V. Lustgarten, 41 N. Y. St. Rep. 623; s. c., 16 N. Y. Supp. 523; cf. to the contrary, Herter v. Mullen, 52 App. Div. 325; Macklin v. McNetton, 30 Misc. Rep. 749; Coleman V. The Fitzgerald Bros. Brewing Co., 29 id. 349; Burton v. Yale, 75 App. Div. 388; Coudert v. Cohn, 118 N. Y. 309; Haynes v. Aldrich, 133 id. 287; Herter v. Mullen, 9 App. Div. 593; revd., 159 N. Y. 28, 33.

39 Moffatt v. Smith, 4 N. Y. 126; Benjamin v. Benjamin, 5 id. 383, 388; Coit v. Planer, 51 id. 647; Pierce v. Pierce, 25 Barb. 243; Dorschel v. Burkley, 18 Misc. Rep. 240; David Stevenson Brewing Co. v. Culbertson, Id. 486; Gregg v. Tamsen, 42 App. Div. 138.