[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 207 The lease having been subscr ed by the lessees only, and not by the lessor, and being for a longer period than one year, was void, and created no estate or interest in the land, and imposed no obligation upon either of *Page 209 the parties. (2 Rev. Stat., 135, §§ 6, 8.) But a tenancy was created by the entry of the lessees under the void agreement, and the character of this tenancy, is the principal point to be determined.
In some cases it has been said that a parol lease for a period longer than a year, is good as a lease for a year, but if by this it is meant that a contract which the statute declares void, may nevertheless take effect, and be enforced as if the term specified had been a year only, it is difficult to see how the proposition can be maintained consistently with the statute. (Thomas v. Nelson, 69 N.Y., 161.)
But although a parol lease for more than a year, is void, yet it has long been settled that when the tenant enters, and occupies, the agreement regulates the terms on which the tenancy subsists, in all respects, except as to the duration of the term. (Doe v. Bell, 5 T.R. 471; 1 Cruise Dig., 281-284.)
It is a reasonable inference in such case from the circumstances that the parties intended a tenancy on the terms of the original agreement, and the law implies a new contract between the parties corresponding therewith, so far as it is not in conflict with the statute. (People v. Rickert, 8 Cow., 226; Schuyler v. Leggett, 2 id., 660; Greton v. Smith,33 N Y, 245; Clayton v. Blakey, 8 T.R., 3.) In this case, the lessees by the writing subscribed by them, agreed to take the premises for five years from May 1, 1870, at the annual rent of $3,500. They entered and jointly occupied form that date until August 1, 1872, paying rent monthly at the rate fixed by the lease.
By the entry, occupation, and payment of rent they became tenants from year to year, with the right to terminate the lease on the thirtieth day of April of any year on giving due notice. (Braythwayte v. Hitchcock, 10 M. W., 494. See, also, cases above cited.) But if they remained in possession after the first of May in any year they could not terminate the tenancy until the expiration of a year from that date. *Page 210
This is the settled rule when a tenant enters under a lease for a year, and holds over after the expiration of the term. The law from the continuance of the possession, implies a contract on the part of the tenant to renew the tenancy for another year, on the terms of the original holding. (Conway v. Starkweather, 1 Den., 113; Schuyler v. Smith, 51 N.Y., 309.)
There seems to be no reason why the same rule should not apply, where although the original entry is not by virtue of an express letting for one or more years, the tenant has occupied and paid rent, and the circumstances show that the parties contemplated a yearly tenancy. That a yearly tenancy was contemplated by the parties in this case is the only inference justified by the facts. The parties had in view, as appears from the void agreement, a tenancy for years. The lessees entered under it. They occupied for several years, paying rent at the rate reserved in the written agreement. The fact that they paid it monthly, cannot in view of the other controlling circumstances be regarded as establishing the holding as from month to month. This may have been done for convenience, or other reason consistent with a yearly holding, which was the nature of the tenancy as the other circumstances establish.
The lessees therefore having remained in the occupation of the premises after the 1st of May, 1872, became bound for another year, and they could not by abandoning the possession before the expiration of the year terminate their liability for the rent for the unexpired term. (Pugsley v. Aiken, 11 N.Y., 494.)
This disposes of the claim made by the defendant that by leaving the premises on the first of August, he was discharged from liability for rent thereafter. Nor did the plaintiff by collecting and accepting from the co-tenant of the defendant, and the party who had succeeded to his interest in the business, carried on, on the leased premises, a part of the rent accruing subsequent to August 1, 1872, with knowledge that the defendant had ceased to occupy the premises, discharge *Page 211 him from liability. It did not establish a surrender or a new letting.
The proof offered by defendant, if admitted, would not have justified a finding of a surrender, and was therefore properly rejected.
No question as to the pleadings was made on the trial. The only question there litigated, was as to the liability of the defendant, upon all the facts, for the rent due on the 1st of May, 1873.
The question of variance cannot now be raised. (Bedford v.Terhune, 30 N.Y., 453.)
The judgment should be affirmed.
All concur, except MILLER and EARL, JJ., absent at argument.
Judgment affirmed.