#### James Regan, Appellant, *v.*William Fosdick, Respondent.

(Supreme Court, Appellate Term,

June, 1898.)

Action for double rent — Recovery for single rent refused.

Where a landlord is defeated in an action to recover double rent of a tenant who held over the term after having given notice to quit (1 R. S. m. p. 745, § 10), the landlord is not, under such complaint, entitled to recover single rent for the term during which the tenant held over.

Appeal from a judgment of the General Term of the City Court, affirming a judgment of the Trial Term dismissing the complaint.

W. H. Knox, for appellant.

A. E. Walradt, for respondent.

Gildersleeve, J.

On November 1, 1895, defendant leased from plaintiff a dwelling-house, No. 65 East One Hundred and Twenty-fourth • street, in this city, for six months, ■ ending May 1, 1896, at the monthly rent of $75, payable in advance. Defendant went into possession, and, on March 15, 1896, gave notice of his intention to quit on May 1, 1896, to plaintiff. Thereafter, and about April 12, 1896, defendant’s child was taken sick in said house with scarlet fever, and continued to- be sick with this disease until May 18, 1896. The case was reported to the bureau of contagious diseases of the board of health, and one of the inspectors took charge of it, and issued an order to defendant that he should not leave the premises “ until the child was through desquamating,” and he had ordered the premises to be fumigated. The house was fumigated on May 18th, and defendant left the premises on the 19th of May, 1896, having thus held over eighteen days. Plaintiff brought the action for double rent for the month of May, 1896, under the provisions of the statute. 2 B. S;. (9tti ed.) 1819, 10.

"On the first trial, judgment was given for plaintiff, which judgment was affirmed by the General Term of the City Court, but was reversed by the Appellate Term. See Regan v. Fosdick, 19 Misc. *624Rep. 489. A new trial was had,-and judgment was given for the defendant, dismissing the ,complaint. This judgment was affirmed by the General Term of the City Court, and an appeal taken therefrom to this court.

The statute, under "which plaintiff brings his ¡suit for double rent, is as follows, viz.: “If any tenant shall give notice of his, intention to quit the premises by him holden, and shall not accordingly deliver up the possession thereof, at the time in such notice specified, such tenant * * * shall, from thenceforward pay to the landlord '* * * double the rent which he should otherwise have paid, to be levied, sued for and recovered at the same time and in the same manner, as the single rent; and such double rent shall be continued to*be paid during 'all the time such tenant shall continue in possession as aforesaid.” On this point, the Appellate -Term held that the statute only applies to a tenancy where" the term is indefinite, ¡and the tenant has the right, and seeks by notice, to terminate it; .and the court, McAdam, J., goes on to. say, “ Where the term is definitely fixed the tenancy expires *éx vi ternúni,*and the giving of notice to quit is a work of supererogation, which furnishes no rights and creates no liabilities. It is clear therefore, that the defendant is in no event liable for double rent under the statute.” As to the holding over, the Appellate Term held !that a. renewal of a lease by reason of the holding over 'of a tenant will not be implied where the tenant was prevented from removing by-the action of the board of health in quarantining the family and forbidding such removal, and that the tenant in such case is liable^ if ¡at all, only for the use and occupation of the premises for thé time he actually occupied them.

The 'only question, therefore, for us -to consider is whether or not the defendant is liable for single rent of the eighteen days’occupation of the premises, *i. e.*from May 1, 1896, to -May 19, 1896; for if plaintiff alleged a cause of action for such rent, the trial court erred in dismissing the complaint.- We are of opinion, how-^ ever, that, under the pleading set forth in the complaint, plaintiff is not entitled to maintain an action or recover a judgment for use and occupation.

There has been no ¡amendment of the complaint. The complaint set forth the lease; '.alleges receipt of notice from defendant of his intention to quit the premises on Hay 1, 1896; alleges defendant’s continuance in possession; .the nonpayment of rent; and concludes by demanding judgment for $150-, as double rent. We *625see, therefore, from a scrutiny of the complaint, and from an examination of the statute, that the cause of action alleged in the complaint is solely a cause of action for double rent, provided for by the statute. The Appellate Term, as we have seen, -has already held that defendant is an no event hable for double rent under the statute. The court further say, “The rule undoubtedly is that, where a tenant holds over ;and continues in possession after the expiration of his term, the landlord ordinarily has an election of remedies. He may treat the tenant as a trespasser, by instituting proceedings to .eject him; or he may hold him as tenant, on the terms of the original demise. The landlord, not having chosen the former remedy, ought to have declared on the new agreement created by the tenant’s conduct and the landlord’s election, or alleged facts, leaving- such new tenancy to be implied, in which case the rent, if any, recoverable would be'$75, the monthly rent reserved in the original lease. The landlord adopted neither of these courses.”

It is a fundamental rule that the judgment must be *secundum allegata et probata*(see Romeyn v. Sickles, 108 N. Y. 652; Day v. Town of New Lots, 107 id. 148; Southwick v. Bank, 84 id. 420); and if the plaintiff recover at all, he must recover under the statute, to which, as we have already seen, he is not entitled. It, therefore, follows that the complaint was properly dismissed.

The judgment must be affirmed, with costs.

Beekman, P. J., and Giegerich, J., concur.

Judgment affirmed, with costs.