#### Stillman Witt, plaintiff and appellant, *vs.*The Mayor, Aldermen and Commonalty of the city of New York, defendants and respondents, *(a)*

1. The general principle that a tenant under a demise for a year or more, by holding over after the expiration of his term, becomes tenant from year to year, is well supported by authority.

2. Where the defendants entered'under a valid lease, the term whereof expired at a time certain, (viz., May 1, 1861,) and after the expiration of that time remained in possession with the assent 'of the landlord until May 12, 1864; *Seld,*that after .May 1, 1861, they became tenants from year to year, and such tenancy having commenced, would continue until one party or the other gave six months’ notice of an intention to determine it.

3. *Seld, further,*that the tenancy from year to year having thus been created prior to May 1, 1863, and no such notice of six months having been given, the defendants’ liability for the rent of the year ensuing May 1, 1863, in no way depended on the solution of the question, whether a tenant under'a lease terminating on a day certain has a reasonable time thereafter within which to remove; nor of the question as to whether to make him a tenant from year to *442year, he must hold over a sufficient length of time to indicate his intention to remain a tenant.

4. A lease, if void, can, of itself alone, have no operation. Tenants being in possession under a former valid lease, and continuing in possession after its termination, may well be regarded as holding over under the terms and conditions of that former lease, and in that event a tenancy from year to year would arise.

6. But if tenants are to be regarded as having entered under a subsequent void lease, the possession under it, and the payment and acceptance of rent under it, would create a tenancy from quarter to quarter; in which case it could not be determined without giving three months’ notice.

6. Hence, if the subsequent lease be void, the tenancy is either-from year to year, or from quarter to quarter; and if neither a six months’ nor a three months’ notice is given, the tenancy will continue during the year upon which the tenant has entered. *<*

7. A notice, given by a tenant for the purpose of terminating a tenancy, should be given either three or six months (depending on whether the tenancy is from quarter to quarter or year to year) prior to one of the usual quarter days, and should notify the landord that the tenancy will be terminated on the next ensuing quarter day.

8. The right of ingress, egress and regress given to a tenant whose term depends on an uncertainty, to cut and carry away the profits, and to remove his goods, is founded on the principle that no sudden determination without the tenant’s fault, of an estate, the time of the expiration whereof is not certainly foreknown, shall tend to the manifest and unforeseen prejudice of the tenant. The principle does not apply to a tenant whose term depends on a certainty; and consequently this right is properly denied to him.

9. The statement made in *Taylor's Landlord and Tenant,*to the effect that “ after the tenant has quit possession, and his tenancy is ended, he has still a right to enter upon the land in order to remove his goods and utensils,” even assuming-it to be supported to its full extent by the authorities cited to sustain it, contains no warrant that the tenant may remain in possession for the purpose of ’ removing his goods, &c., but simply that after *he has quit possession*he may enter on the land for the purpose of'making such removal.

10. But the authorities cited in support of that statement do not sustain it, to its full extent. By those authorities this right of entry is confined to tenants whose terms depend on an uncertainty; among them tenants at will.

11. The right of the landlord to elect to hold a tenant holding over, either as a trespasser or tenant, rests on the tenant’s breach of his contract in so holding over, and not on the intention or motive with which he committed such breach. When, however, the question arises as to whether the landlord has elected to hold his tenant as tenant, then the length of time during which the tenant has been allowed to remain in possession, without molestation, is one fact from which an election to hold him as tenant- may be inferred.

12. Where the corporation of New York in the proper and legal exercise of its power, placed its agent, the street commissioner, together with the books and *443papers of the office in certain premises, and kept him in- those premises, there transacting its business, giving him no direction to change, and providing no other office for him to transact the duties of his agency in, until at last it provided another place, and directed him to remove thereto, at a time when it was impossible for him to do so without holding over in the premises in question for a sufficient time to enable him properly and with due care to remove the hooks, papers, &c.; *Held*that such act of holding over was directly caused by the corporation, and it alone was responsible therefor.

13. To provide accommodations for the performance of corporate duties and work, by its officers and agents, falls within the scope of the corporate powers of the corporation of New York; and to this end, to become a tenant of premises is also within the scope of such powers.

14. In the absence of any statutory provision directing how that power shall he exercised, such tenancy may he created or raised in any manner known to the law. It may be by a valid lease, or entering into possession under an invalid lease, and the payment and acceptance of rent according to its provisions; or, at the option of the landlord, by continuing in possession after the expiration of a demised term.

15. In whichever way it is created or raised, the rules and principles applicable to an individual creating or raising a tenancy in a similar way, and the liability incurred by him thereby, are also applicable to and incurred by the corporation; there being no statutory provision to the contrary.

16; The corporation is therefore capable of holding over, as a tenant of demised premises, after the expiration of the term.

(Before Barbour, Garvin and Jones, JJ.)

Heard December, 1866;

decided December 31, 1868.

Appeal from a judgment in favor of the defendants.

On the 26th of July, 1858, the common council of the city of New York passed a resolution, duly approved by the mayor, by. which the comptroller was authorized to lease from the proprietor of the “ Times” building the four upper stories of the one adjoining the brown stone building, being the fourth building from the corner of Spruce street, fronting on Park Row, for the *term of two*years, at an annual rent not to exceed the sum of five thousand five hundred dollars.

Under the authorization of the said resolution the comptroller leased the premises for a period of *two years and some months,*at an annual rent of |5000, which rent was duly paid by the defendants. When this term terminated does not distinctly appear, but it may be assumed to be May 1st, *4441861. Then, *or*shortly prior to May 1st, 1861, the comptrollér, without any further authorization from the common council, hired the premises at the same rate, for the year from May 1, 1861, to May 1, 1862. Then, and on the 3d day of April, 1862, the comptroller, without any further or other authorization or direction of the common council, leased the premises for the term of one year from the 1st day of May, 1862, at the same rent of $5000, which was duly paid "by the defendants.

The street commissioner of the defendants went into possession of said premises on the first leasing thereof, and used and occupied the same as his official office for the transaction of the corporate business, and remained in possession until May 12,1863. -A resolution authorizing the comptroller to lease a portion of the building occupied in part by the Broadway Bank, upon Broadway, for the use of the street commissioner, for a term not exceeding ten years, and at an annual rent not exceeding $10,000, was passed by the board of aider-men, March 23,1863, and by the board of common council, April Í3,1863, but did not become an ordinance until May 1, 1863, when it was returned by the mayor without objection or approval. On May 1, 1863, the street commissioner began removing his office from said premises to the building known as the Broadway Bank, and prosecuted the removal with the usual diligence, but was engaged in removing his said office for about the period of 12 days thereafter; and he employed from thirty to forty men to assist in such removal, and as many carts as could be advantageously employed; but did» not finally leave the premises until May 12, 1863. The plaintiff’s agent was aware early in April, 1863, of said resolution having been adopted by the board of councilmen. Until the 1st of May, 1863, the defendants neither provided any place for the street commissioner to transact the business of the corporation in other than the premises in question, nor any place to which the street commissioner could remove the books, documents and papers of the defendants appertaining to its business. On the 2d of May, 1863, the *445street commissioner sent to the plaintiff’s agent the following communication:

“Kew York, 2d. May, 1863.

Me. Wesley,

Dear Sir: The comptroller having leased the rooms ■ over the Broadway Bank for the use of the street department, I write to inform you that we shall immediately commence moving from these apartments, and will endeavor to be out by Saturday next, 9th instant.

Respectfully, Chables G. Goenell,

Street Commissioner.”

Eeither the street commissioner no.r the defendants gave the plaintiff any other notice of an intention either to terminate the tenancy or to surrender possession.

In the course of the trial the plaintiff offered to prove that the premises were not left in as good condition as when taken by the defendants, natural wear excepted, but that they had been greatly injured and damaged; and offered to prove the amount of damage. The evidence was objected to, the objection sustained, and the plaintiff excepted.

Judgment was rendered in favor of the defendants, against the plaintiff. From this judgment the plaintiff appealed.

The defendants, in support of the judgment, made and ■ argued the following points, only:

I. The only lease was that which was made between Wesley and the comptroller, by virtue of the resolution of the common council, which expired on the 1st May, 1862. The occupation of the premises» subsequent thereto, and up to the 1st May, 1863, was by a parol understanding between the said parties, without authorization of the common council, and the rent for which said period has been fully paid.

II. There existed no lease of the premises by authorization of the common council after the 1st May, 1863, or by parol between the comptroller-and the plaintiff, or between *446the street commissioner and the plaintiff. Any lease of said premises for the uses of the street department would he void, unless authorized by the common council and duly approved.

III. But it appears that prior to the 1st May, 1863, the common council did pass a resolution authorizing and directing their comptroller to *hire another building*for the uses of the street commissioner’s department, and *of which resolution the plaintiff bp his agent had due*notice.

IV. That the street commissioner did not intend to occupy the premises after the 1st May, 1863, is evident from the fact disclosed by the testimony, that he commenced moving theréfrom on that day, employing the requisite force and using due diligence, which was notice in itself of the termination of any tenancy.

V. The defendants, a municipal corporation, were incapable of holding over, and cannot create a pecuniary liability, except in the manner prescribed by its charter.

*F. J. Fithian,*for the plaintiff, appellant,

*'John K. Hackett,*for the defendants, respondents.

(a)

The opinion of Justice Barbour, in this case, was, by mistake of the reporter, reported (5 *Sob.*248) as being that of the court, before the case was decided. The opinion of Justice Jones, here given, was the opinion of the court. Justice Barbour, however, arrives at the same result.

By the Court, Jones, J.

The general principle that a tenant under a demise for a year or more by holding over after the expiration of his term, becomes tenant from year to year, is well supported by authority. *(Conway*v. *Starkweather,*1 *Denio,*113.) Indeed the principle has not been denied in the case at bar. But it is contended, 1st. That the tenant has a reasonable time after the expiration of his term, within which to remove his goods and chattels; and that as in this case the tenant held over only for such reasonable time, there is no such holding over as constitutes him a tenant from year to year. 2d. That the holding over must be such, in its character, as to raise a presumption, arising from the length of its duration, or the circumstances *447under which it occurred, that the tenant intends to continue his occupancy as a tenant.

In the. present case, if the lease of April 3d, 1862, be wholly disregarded, then the defendants are clearly tenants from year to year, and could not terminate the tenancy without giving six months’ notice, which has not been done. The defendants entered under a valid lease, the term whereof expired at a time certain. After the expiration of that term possession was clearly retained for a sufficient length of time to indicate an intention to hold over, which holding over was assented to by the landlord, and the defendants then became tenants from year to year; and this tenancy having commenced, will continue until one or the other parties gives six months’ notice of an intention to determine it. *(Pugsley*v. Aiken, 11 *N. Y. Rep.*494, 497.) No such notice having been given, the tenancy did not end on the 1st of May, 1863, but existed during the year ending May 1, 1864. Consequently, in this aspect of the case, the defendants’ liability for the rent of the year ensuing May 1st, 1863, in no way depends on the solution of the question whether a tenant has a reasonable time, after the • expiration of his lease, within which to remove, nor of the question as to whether, to make him a tenant from year to year, he must hold over after the expiration of his term a sufficient length of time to indicate his intention to remain a tenant.

Let us now consider the effect of the lease of April, 1862. The defendants say this lease of 1862 was void; therefore the tenancy, by its operation, has become a tenancy at will, and being such, it could be terminated at any moment at the will of either party, and it was thus terminated when possession was given up. This is in effect saying, in one and the same breath, 1st. The lease of 1862 being void, it *cannot*operate to create a tenancy for the specific term demised by it. 2d. The lease of 1862 being void, it *can*operate to create a tenancy at will.

The lease, if void, can, of itself alone, have no operation. *448The defendants, therefore, being in possession under a former valid lease, and continuing in possession after its termination, may well be regarded as holding over under the terms and conditions of that former lease, and in that event a tenancy from year to year would arise. If, however, the defendants are to be regarded as having entered under the void lease, (and its possession during the year ending May 1, 1863, must be referred either to an entry under the void lease, or a holding over on the terms and conditions of a former lease,) the possession under it, and the payment and acceptance of rent under it, would create a tenancy from quarter to quarter, in which case it could hot be determined without giving three months’ notice. *(Anderson*v. *Prindle,*23 *Wend.*616.)

If, then, this lease of 1862 be void, the tenancy is either from year to year or from quarter to quarter. It is unnecessary to determine which, because neither a six months’ nor a three months’ notice has been given, and consequently the tenancy continued during the period for which the rent is claimed.

The notice given by the street commissioner was clearly insufficient to terminate the tenancy. It should have been given either three or six months (depending on whether the tenancy was from quarter to quarter or year to year) prior to one of the usual quarter days, and should notify the landlord that the tenancy would be terminated on the next ensuing quarter day. *(Anderson*v. *Prindle,*23 *Wend.*616, 619. 2 *Blade. Com.*146.)

It necessarily follows that if the lease of 1862 be void, the plaintiff is entitled to recover, notwithstanding the two objections above urged, for the same reason upon which he would be entitled to recover as above stated, if this lease had not been attempted to be made.

But suppose the lease of 1862 to be valid, how then stands the case ? The. only objections raised to a recovery in this aspect of the ease are the two above mentioned, the validity of which will now be considered.

*4491st. As to the objection that the tenant has a reasonable time, after’ the expiration of his term, to remove his goods,' &c., and that the defendant held over only for such reasonable time, and therefore there was no such holding over as constituted the defendant a tenant from year to year. The argument depends on the soundness of the proposition that the tenant has a reasonable time after the expiration of his term within which to remove his goods and chattels. This proposition is based on a • statement in *Taylor’s Landlord and Tenant,*to the effect that “ after the tenant has quit possession, and his tenancy is ended, he has still a right to " enter upon the land in order to remove his goods and utensils,’’ and the authorities cited in support of the proposition. Assuming the statement made by Mr. Taylor to be supported by the authorities, to its full extent, still it contains no warrant that the tenant may remain in possession for the ■ purpose of removing his goods and utensils, but simply that after *he has quit possession*he may enter on the land for the purpose of making such removal; But the authorities cited by Mr. Taylor in support of his statement, to wit, 2 *Black. Com.*147, and *Ellis*v. Paige, (1 *Pick.*43,) do not sustain it to its full extent. By those authorities this right of entry is confined to tenants whose terms depend on an uncertainty, among them tenants at will. Thus Blackstone, at page 145, says: “ With regard to emblements, or profits of lands sowed by tenant for years, there is this difference between him and tenant for life; that when the term of tenant for years depends on a certainty, as if he holds from midsummer for ten years, and in the last year he sows a crop of corn, and it is not ripe and cut before midsummer', the end of his term, the landlord shall have it; for the tenant knew the expiration of his term, and therefore it was his own folly to sow what he could never reap the profit of. But when the lease for years depends upon an uncertainty, as upon the death of a lessor, being himself only tenant for life, the estate for years not being certainly to expire ^t a time foreknown, the tenant shall have *450the emblements, in the same manner as a tenant for life, or his executor shall be entitled thereto'. Not so if it determine by the act of the. party himself, as if tenant for years does any thing that amounts to a forfeiture; in which case the emblements shall go to the lessor, and not to the lessee who hath determined his estate by his own default.”

This distinction between a lessee for years whose term depends on a certainty, and- a lessee for years whose term depends on an uncertainty, applies equally between a tenant for years whose term depends on a certainty, and a tenant at will, and for the same reason, viz., the point of uncertainty. Thus, Blackstone says: “ If the tenant at will sows his land, and the landlord, before the com is ripe or reaped, puts him out, yet the tenant shall have the emblements, and free ingress, egress and regress to cut and *carry away*the profits. And this for the same reason on which all cases of emblements turn, viz., the point of uncertainty ; since the tenant could not possibly know when his landlord would determine his will, and thereafter could make no provision against it, and having sown the land, which is for the good of the public, upon a reasonable presumption, the law will not suffer him to be a loser by- it. But it is otherwise, and upon reason equally as good, when the tenant himself determines the will, for in this case the landlord shall have the profits of the land.”

The same principle is applied to the goods' and Utensils of the tenant. “By parity of reason,” sáys Blackstone, “the lessee, after the determination of the lessor’s will, shall have reasonable ingress and egress to fetch away his goods and utensils.”

This right of ingress, egress and regress thus given to a tenant whose term depends on an uncertainty, is founded on the principle that no sudden determination, without the tenant’s fault, of an estate, the time of the expiration whereof is not certainly foreknown" shall tend to the manifest and unforeseen prejudice of the tenant. The principle *451does not apply to a tenant wnose term depends on a certainty ; and consequently this right is properly denied to him.

If, then* the lease of 1862 is valid, the law- accords to the tenant no time whatever, after the expiration of its term, within which to remove the goods, &c., since the duration of the term depends on a certainty. The first objection is therefore untenable.

The second objection is, that the holding over must be such, in its character, as to raise a presumption arising from the length of its duration, or the circumstances under which it occurs, that the tenant intends to continue his occupancy. The argument is that the holding over is merely presumptive evidence of the continuance of the tenancy ; that consequently it must be sufficiently long to raise a presumption of continuance of tenancy; and of course it follows that such presumption may be rebutted by evidence. This argument the late Supreme Court distinctly met and overthrew, in the case of *Conway*v. Starkweather, (1 *Denio,*113,) Bronson, Ch. J., delivering the opinion of the court.

The right of the landlord to elect to hold a tenant holding over, either as a trespasser or a tenant, rests on the tenant’s breach of his' contract in so holding over, and not on the intention or motive with which he committed such breach. When, however, the question arises as to whether the landlord has elected to hold his tenant as tenant, then the length of time during which the tenant has been allowed to remain in possession without molestation is one fact from which an election to hold him as tenant may be inferred.

It is however urged that the corporation is not liable for the acts of the street commissioner in holding over. It is not necessary to enter into a" discussion as to the power of agents to bind corporations in general, or of the agents of this particular corporation to bind it; for this act of holding over is clearly to he regarded as the act of the corporation itself. The corporation, in the proper and legal exercise of its power, placed its agent, the street commissioner, together with the books, papers and paraphernalia *452of the office, in these premises. It kept him in these premises, there transacting its business, giving him no direction to change, and providing no other place for liiffi to transact the duties of his agency in, until at last it provided another place, and directed him to remove there, at a time when it was impossible for him so to do without holding over in the premises in question for a sufficient time to enable him properly and with due care to remove the books, papers and documents committed to his care. This holding over, then, was directly caused by the corporation, and it alone is responsible therefor.-

The defendants’ counsel makes the further point that a municipal corporation is incapable of holding over, and cannot create a pecuniary liability except in the manner prescribed by its charter. There are here two distinct propositions; one, that a municipal corporation cannot hold over. It might as well be said that such a corporation is incapable of entering into possession of premises under a valid lease; for a holding over is merely the remaining in possession, after the expiration of the demised term. If it is capable of entering into possession, (which is not doubted,) I fail to perceive,, nor am I informed by counsel, why it is incapable of remaining in possession. If it does remain in possession after the expiration of the demised term, it is liable for the legal consequences of so remaining, unless by its inherent nature, or by some statute, it is relieved therefrom. 'Whether it is so relieved will be considered in the discussion of the second proposition of the point, which is, that a municipal corporation cannot create a pecuniary liability except in the manner prescribed in its charter.

A municipal corporation may make contracts in the same manner and to the same extent-as individuals, and be liable thereon, and for a breach thereof, the same as individuals; it may also do acts, and omit to do acts, and be liable for such commission, or omission, the same as individuals; subject, however,,to the restriction that the contracts entered into, and acts done,, must fall within the scope of its corporate powers, *453or the acts done must he done while in the exercise of a corporate power, and the acts omitted must be such as are imposed on it, or which should have been done in the performance of some duty resting on it by contract or law; subject also to such further restrictions as may be placed on it by its charter or other statute, in prescribing a mode in which certain contracts shall be made, or acts or duty performed ; in which case it may be as well to state that it seems by the authority of several cases no liability in any form whatever can arise against the corporation for materials furnished to, or services performed for, or other benefit received by, it under a .contract made otherwise than as prescribed, or for any act or duty performed by it in a manner otherwise than as prescribed; but it may be liable for injuries received by reason of negligence in performing the act or duty -in the manner prescribed, and also for wrongs done by either the non-performance or negligent performance of a contract made in the prescribed manner.

The extent to which decided cases have gone, or to which the principle on which they rest may lead, in holding municipal corporations incapacitated from entering into contracts, or incurring liabilities, and relieved from pecuniary responsibility by statutory provisions, is not presented for consideration.

To provide accommodations for the performance of corporate- duties and work, by the officers and agent's of the corporation, falls within the scope of the corporate powers of the defendant; and to this end to become a tenant of premises is also within the scope of such powers. There is no statutory provision (in its charter or otherwise) that I am aware of, and I have been referred to none, providing how this power shall be exercised. Such tenancy may therefore be created or raised in any manner known to the law. It may be by a valid lease, or entering into possession under an invalid lease, and the payment and acceptance of rent according to its provisions; or, at the option of the landlord, by continuing in possession after the expiration *454of a demised term. In whichever way it' is created or raised, the rules and principles applicable to an individual creating or raising a tenancy in a similar way, and the liability incurred by him thereby, are also, applicable to and incurred by the corporation, there being no statutory provision to the contrary.

In accordance with these views, the plaintiff was entitled to recover rent for the year ending May 1st, 1864.

As the judgment must be reversed by reason of the non-allowance of this rent, it is unnecessary to pass on the exception taken to the exclusion of the evidence offered to show that the premises were not left in as good repair as when taken by the defendant, natural wear excepted, but that they had been greatly injured and damaged, and the damages occasioned thereby.

It may however, perhaps, be proper to suggest that if the lease of 1862 be invalid, (it not appearing what covenants wbre contained in the last valid lease,) the obligation of the defendant in this respect would probably be restricted to the non-commission of waste and to returning of the premises in a habitable condition; and consequently they would only be liable for a breach of this obligation.

I think the judgment should be reversed, with costs to the appellant to abide the event.