(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.