Practice. Before the Codes of Procedure (and the overthrow of equity as a distinct practice), as the statute provided that double rent might be recovered in the same manner as the single rent, the landlord could maintain an action of debt, or if on a parol demise, assumpsit, or he might even distrain for it. Since the abolition of distraint and of the distinction between suits in equity and actions at law, the landlord can only maintain the one form of action provided by the Code for all penalties or forms of indebtedness. Rent defaults only are remedied by summary proceedings to recover possession of the demised premises, and the penalty cannot be recovered in proceedings to dispossess.

9

Parol Lease and Notice. A lease by parol is a holding within this statute, and a parol notice of quitting is sufficient to render tenant liable to double rent in case he hold over.10

Landlord's Remedies. Even though the tenant gives notice to quit, if he hold over, the landlord may treat the tenant either as a trespasser, or waive the penalty and treat him as holding under an implied tenancy for another year.11

Application of this Section. It was thought that this section applies, and that tenant is liable for double rent even where holding over is occasioned by sickness12 or superior stress, but this doctrine has been qualified of late, and in a way not favorable to landlords.13 Partners. Where partners are tenants, and one holds over after the partnership expires, he, and not the others, is liable.14

Holding Over under Privilege. Where the lease is for two years, with privilege of three more upon a written notice from tenant, and tenant holds over without serving notice, the holding over is an election to avail of the option, and not a holding over under the statute.1

15

8 Comyn, Landl. & Ten. 352. 9 Burr. 1603.

10 Burr. 1603; and see Comyn, Landl. & Ten. 352, on this statute.

11 Haynes v. Aldrich, 133 N. Y. 287; Vosburgh v. Corn, 23 App. Div. 147; Conway v. Starkweather, I Den. 113. But the privilege is not reciprocal. Merritt v. Merritt, 3 N. Y. St. Rep. 484; Dagett v. Champney, 122 App. Div. 254.

12 Herter v. Mullen, 9 App. Div. 593; Regan v. Fosdick, 18 Misc. Rep. 556; s. c., 23 id. 623; Haynes v. Aldrich, 133 N. Y. 287; cf. Hammond v. Eckhartt, 30 N. Y. St. Rep. 856;

Ketcham v. Ochs, 34 Misc. Rep. 470, 472.

13 Herter v. Mullen, 9 App. Div. 593; revd., 159 N. Y. 28; s. c., 52 App. Div. 325; Preiser v. Wielandt, 48 id. 569; Weber v. Rogers, 41 Misc. Rep. 662; Carmes v. Rhodes, 118 App. Div. 915. These last cases to a real property lawyer seem to bear very hard on landlords.

14 James v. Pope, 19 N. Y. 324; Buchanan v. Whitman, 151 id. 253, 257; Mason v. Tietig, 23 Misc. Rep. 443.

15 Bailie v. Plant, 11 Misc. Rep. 30.

§ 230. Liability of tenant holding over after receiving notice to quit. Where, on the termination of an estate for life, or for years, the person entitled to the possession demands the same, and serves, in the same manner as for the termination of a tenancy at will, a written notice to quit, if the tenant, or any person in possession under him, or by collusion with him, wilfully holds over, after the expiration of thirty days from such service, he must pay to the person so kept out of possession, or his representatives, at the rate of double the yearly value of the property detained, for the time while he so detains the same, together with all damages incurred by the person so kept out by reason of such detention. There is no equitable defense or relief against a demand accrued, or a recovery had, under this section.

Formerly section 2co, Real Property Law of 1896, chapter XLVI, General Laws:

§ 200. Liability of tenant holding over after giving 16 notice to quit.Where, on the termination of an estate for life, or for years, the person entitled to the possession demands the same, and serves, in the same manner as for the termination of a tenancy at will, a written notice to quit, if the tenant, or any person in possession under him, or by collusion with him, willfully holds over, after the expiration of thirty days from such service, he must pay to the person so kept out of possession, or his representatives, at the rate of double the yearly value of the property detained, for the time while he so detains the same, together with all damages incurred by the person so kept out by reason of such detention. There is no equitable defense or relief against a demand accrued, or a recovery had, under this section.17

Section 200 was formerly 1 Revised Statutes, 745, section II:

§ 11. If any tenant, for life or years, or if any other person who may have come into possession of any lands or tenements, under or by collusion with such tenant, shall wilfully hold over any lands or tenements after the termination of such term, and after demand made and one month's notice, in writing, given in the manner herein before prescribed, requiring the possession thereof by the person entitled thereto, such person so holding over shall pay to the person so kept out of possession, or his representatives, at the rate of double the yearly value of the lands or tenements so detained, for so long a time as he shall so hold over or keep the person entitled, out of possession; and shall also pay and remunerate all special damages what

16 This word "giving" should have been omitted in caption of this section.

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

ever, to which the person so kept out of possession may be subjected by reason of such holding over; and there shall be no relief in equity against any recovery had at law under this section.18

Origin of Section. The tenant's neglect to deliver up demised premises after notice to quit and the expiration of the demise was remedied in England by a statute giving double rent.19 This statute, not extending to New York, was enacted here in 1774.20 It was again re-enacted in 1788, in the first great revision of those English statutes which had extended to New York.21 Thence it passed through several other revisions of the State laws.22 In 1820 it was amended,23 and then adopted by the Revised Statutes.24 From the Revised Statutes it passed into the present law.25 Thus, with the exception of the clause taken from the amendment of 1820, giving special damage in addition to double rent, this section under consideration is virtually the act of 4 George II, chapter 28. Construction of this Section. It has been held, in England, that a weekly tenant, although strictly "a tenant for years," is not within this statute, which is penal and to be strictly construed.26 Whether, therefore, this statute extends in New York to monthly tenants, entitled under special laws to five days' notice, may be doubted.27 When Section Does Not Apply. The statute does not extend to those cases where tenants maintain possession in good faith and not willfully in violation of clear legal right.2

28

Ejectment. Damages under this section may be recovered in an action of ejectment, non obstante the rule of damages prescribed by the Code of Civil Procedure29 in such cases.

18 Repealed, chap. 547, Laws of 1896.

19 4 Geo. II, chap. 28, § 1.

20 Chap. 14, Laws of 1774. 21 2 J. & V. 238, § 21.

22

I K. & R. 134, § 21; 1 R. L. 440, § 21. Statement in text quoted and affirmed in Barson v. Mulligan, 191 N. Y. at p. 326.

23 Chap. 194, Laws of 1820, § 8. This amendment gave special damages in addition to double rent.

241 R. S. 745, § II.

25 Supra, § 230, Real Prop. Law. 26 Lloyd v. Rosbee, 2 Camp. 453. 27 Chap. 303, Laws of 1882; amd., chap. 357, Laws of 1889; cf. People ex rel. Auldhause v. Goelet, 64 Barb.

28 Comyn, Landl. & Ten. 349; Hall v. Ballantine, 7 Johns. 536; cf. Mumford v. Brown, I Wend. 52; McKay v. Mumford, 10 id. 351, as to tenants in common; and under another statute, 11 Geo. II, chap. 19 (now 229, Real Prop. Law). See also Regan v. Fosdick, 18 Misc. Rep. 556; Herter v. Mullen, 9 App. Div. 593; revd., 159 N. Y. 28, again 52 App. Div. 325; Haynes v. Aldrich, 133 N. Y. 287; Hausaer v. Dahlman, 18 App. Div. 475; Ketcham v. Ochs, 34 Misc. Rep. 470, 472; Barson v. Mulligan, 191 N. Y. 306, 327.

29 Barson v. Mulligan, 191 N. Y. 306, 327, 328.

Where Tenant for Years Holds Over. Where the landlord does not serve notice and tenant for years voluntarily holds over, the latter now holds, at landlord's election, upon an implied tenancy for a year; 30 and if the landlord accepts rent, he cannot then terminate tenancy under this act before the end of such year. Where the landlord serves notice to quit and tenant for years non obstante voluntarily holds over, the landlord may then elect to treat the tenant either as a trespasser, or as in lawful possession for another year on an implied demise on the same terms.31 But where the landlord's notice is, in effect, that if tenant hold over, the rent will be increased to a sum specified, and tenant holds over, it seems he is liable for the rent specified in the notice, and not under the statute.32 Elsewhere than in the city of New York if tenant for less than a year hold over, it is for a term of equal duration.3

33

Lease for Lives Begins Day after its Date. A lease for lives does not include the day of its date, but begins from the following day.34

Precisely when Lease for Years Begins and Expires. Precisely when a lease for years begins and ends, has been a subject of some diversity of opinion in England and this country. But when a lease for a year has been practically construed to commence on the day of its date by taking possession, that day is included in computing

30 Schuyler v. Smith, 51 N. Y. 309; Johnson v. Doll, 11 Misc. Rep. 345; Haynes v. Aldrich, 133 N. Y. 287; Cram V. Springer Lith. Co., 10 Misc. Rep. 660; Frost v. Akron Iron Co., 1 App. Div. 449; Farrell v. Manhattan Railway Co., 43 id. 143; Sullivan v. Ringler & Co., 59 id. 184; Latham v. Woodward, 50 Misc. Rep. 306; United Merchants R. & I. Co. v. Roth, 53 id. 92, 94; revd., 122 App. Div. 628, 193 N. Y. 570; Porter v. Bleeker, 17 Barb. 149; Baylies v. Ingram, 84 App. Div. 360, 362; Dagett v. Champney, 122 id. 254; Kennedy v. City of New York, 127 id. 89; Laughran v. Smith, 75 N. Y. 205; Coudert v. Cohen, 118 id. 309. (See an exception where tenant in common is member of lessee firm

holding over. Valentine v. Healey, 178 N. Y. 391); cf. Adams v. City of Cohoes, 127 N. Y. 175; McKay v. Mumford, 10 Wend. 351, 353; Luger v. Goerke, 18 App. Div. 291.

31 Schuyler v. Smith, 51 N. Y. 309; Baylies v. Ingram, 84 App. Div. 360, 362; Stevens v. City of New York, III id. 362; Barson v. Mulligan, 191 N. Y. 306; cf. Herter v. Mullen, 159 id. 28, again, 52 App. Div. 325; Beeston v. Yale, 75 id. 388.

32 Frost v. Akron Iron Co., 12 Misc. Rep. 348; revd., 1 App. Div. 449; cf. Mitchell v. Clary, 20 id. 595. 33 Ketcham v. Ochs, 34 Misc. Rep. 470.

34 Challis, 83; cf. 2 Sugd. Pow. 344.

the year, and the term expires at midnight on the preceding day in the next year.35 But ordinarily the day from which a lease begins is excluded in the reckoning 36 If the lease expire on Sunday the tenant has until the following day to remove.37

Custom of New York City. Where a lease expires on May first by custom of the city of New York, it expires at noon of that day.38

35 Buchanan v. Whitman, 151 N. Y. 253, and cases there cited.

36 Hungerford v. Wagoner, 5 App. Div. 590.

37 Frost v. Akron Iron Co., 1 App. Div. 449, 453.

38 Frost v. Akron Iron Co., 1 App. Div. 449, 453, 454