Banks v. Carter

Citations

• 7 Daly 417

Syllabus

<p>Under a complaint for damages resulting to plaintiff from defendant’s leaving cumbersome property ón demised premises after expiration of term, alleging that plaintiff did not receive possession until after the 2d of June, and was deprived of the benefit and enjoyment of the premises until the 18th of June, an answer counter claiming damages for a wrongful entry on or about the 2d day of June, and a reply denying generally the allegations of the answer constituting the eoun-</p> <p>. ter claim, the plaintiff may give evidence of a peaceable entry with the defendant’s consent on the 9th of June, and such evidence is not inconsistent with the plaintiff’s pleadings, and a submission of the question of fact as to such peaceable entry and consent to the jury is proper under the issues raised.</p> <p>A reargument will not be granted except where some question decisive of the case and duly submitted by counsel lias been overlooked by the court, or where the decision made is in conflict with an express statute or a controlling decision, to which the attention of the court was net called by counsel.</p> <p>It seems, that the notice in writing given under 1 R. S. 745, §§ 7 and 8, to terminate a tenancy at will or by sufferance, cannot be served by leaving it at the tenant’s place of business (not being his residence) while he is absent therefrom.</p> <p>It seems, that a tenancy from month to month, which by special agreement can be terminated upon a notice of thirty days, is in the nature of a tenancy at will, and that the notice to terminate it must therefore be given in the manner prescribed by 1R S. 745, §§ 7 and 8.</p> <p>It seems, that in tenancies from month to month the thirty days of notice does not run from the day of service, but the statute requires the service to be made thirty days before the expiration of a month of tenancy ; thus, notice served on the 25th of April would terminate the tenancy on the 26th of May, the latter-day being the end of a month of ten