Grosscup v. Spiller

Seabury, J.

(concurring). In this case the clause in the lease gives the landlord the right to re-enter and have full possession of said premises “ on giving five days’ previous notice of intention so to do and tendering payment of the rent paid on account of the unexpired term; and upon the expiration of said notice and tender of payment” the landlord shall be entitled to the immediate possession thereof.”

This clause does not provide that the lease shall terminate or the term expire upon the giving of five days’ notice/ The provision as to notice is preliminary merely to the landlord’s right to re-enter. The tenant is not a holdover after such notice is given to him and his estate is not forfeited until re-entry is made by the landlord.

The tenant not being a holdover, this case is not within the provision of the statute which sanctions summary proceedings. Such being the case, the landlord is remitted to his common-law remedy of ejectment.

Order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Order reversed and new trial ordered, with costs to appellant to abide event.