(dissenting). Proceeding by owner-landlord to recover commercial space under subdivision (d) of section 8 of the emergency statute. Defense, that the appellants on the expiration of their written lease continued in possession as tenants at will paying their rent monthly, and the landlord failed to give a thirty-day notice. The petition further alleged a breach of the tenants’ covenant not to sublet, but that claim was withdrawn on the trial.
Appellants are mistaken as to the character of their tenancy, for under,the emergency statute there can be no tenancy at will; the law, not the landlord, controls so long as the tenant pays his rent. However, at the close of the case appellants moved to dismiss on the ground that proper notice under the Beal Property Law and the Civil Practice Act. had not been given, no reference being made to tenancies at will, and the mere fact that the tenants’ attorney claims in his brief that appellants as tenants at will should have beén served as a preliminary to this proceeding with a thirty-day notice is immaterial, the question being whether, at the time of the commencement of the proceeding appellants came within the statute (Beal Property Law, § 232-a) providing that “No monthly tenant, or tenant from month to month, shall hereafter be removed from any lands or buildings in the city of New York on the grounds of holding over his term unless at least thirty days before the expiration of the term the landlord or his agent serve upon the tenant, in the same manner in which a precept in summary proceedings is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy and that unless the tenant removes from such premises on the day on which his term expires the landlord will commence summary proceedings under the statute to remove such tenant therefrom.”
' It appears that the tenants rented, under written leases, two rooms in the landlord’s building, one lease expiring April 30, *441946, and the other August 14, 1946; that the new owners, the present landlords, obtained title April 30, 1946,' and proof was given on the trial in support of the essential allegations of the petition as to the petitioner’s interest and that in good faith they sought possession for their immediate and personal use.
After the expiration of the yearly tenancy in each instance the tenants remained in possession paying the rent monthly in advance and continued such payments down to December 31, 1946, a period of about eight months after purchase by the landlords. The precept herein was issued January 9, 1947, without prior statutory notice.
Subdivision (d) of section 8 of the emergency statute, pursuant to which the proceeding was brought, provides that nothing in said subdivision “ shall authorize the dispossession, of a tenant during the term of his lease by such landlord or such person unless by the terms of the lease the privilege is reserved to terminate the lease upon sale of the building or other rental area * * By virtue of the leases the tenants were yearly tenants paying the rent monthly in advance. Upon the expiration of the terms the landlord could have maintained summary proceedings without prior notice; it elected however to allow the tenants to remain in possession collecting the rent monthly in advance, thus changing the status of the tenants from yearly to monthly tenants in the city of New York within the meaning of section 232-a of the Beal Property Law, so that in the absence of the preliminary thirty-day notice therein provided for the final order cannot be sustained (Frankel v. Rost, 272 App. Div. 334). Such result accords with the practice of this court (Tripodi v. Rudershausen, 186 Misc. 363; Kohner v. Empire Doll Co., N. Y. L. J., June 14, 1946, p. 2364, col. 4). Incidentally it is notable that if a landlord, without emergency curb, desires to increase the rent of a monthly tenant in New York City he is required as a preliminary to serve a thirty-day notice of such desired increase (Miller v. Lowe, 86 N. Y. S. 16).
Begarding the effect of the McAdam Act — the original statute (L. 1882, ch. 303) providing for preliminary notice to monthly tenants in the city of New York — this court (Rogan v. Weiss, 115 Misc. 193, 194, opinion by Lehman, J.) said: “Prior to the enactment of that statute, a monthly tenant could be removed by the landlord at the expiration of the month without any previous notice, because a monthly tenancy is a tenancy for a definite period, and a tenant occupying premises for a definite period is compelled to quit the premises at the end of such period.. The statute did not create a new kind of tenancy, and *45the tenant has always had the right to remove from the premises at the expiration of his term, but it took away from the landlord the right to remove the tenant by summary proceedings or by re-entry obtained in any other way, unless he had previously given the required notice to the tenant. For practical purposes, if the tenant could not be removed from the premises without a previous notice, the statute had the same effect as if it had provided that unless the landlord gave previous notice to the tenant, the tenant had the option of automatically renewing his monthly tenancy at the expiration of the month by remaining in the premises. In other words, it compelled the landlord to accept the tenant as a holdover without any alternative of treating him as a trespasser.”
Prior to the existing emergency such a tenant was a “ statutory tenant ” so far as notice is concerned. The landlord could not evict him for holding over the term in the absence of a thirty-day notice, notwithstanding the tenant could leave at any time without notice (T. I. B. Corp. v. Repetto, 174 Misc. 501, affd. 261 App. Div. 813), and certainly in the present emergency it was not the intention of the Legislature to abolish the rights of monthly or month-to-month tenants in the city of New York with respect to notice.
The decision of the Appellate Term, Second Department, in Shelton Bldg. Corp. v. Baggett (188 Misc. 709) cited in the opinion of Justice Hammer is based on the theory of “ projection ” of a conditional limitation five-day notice, following breach of covenant, into, as the landlord in that case informed the tenant, a “ month to month ” tenancy. There is no breach of covenant here.
The final order should be reversed, with $30 costs, and petition dismissed, with costs, without prejudice to a new proceeding.
Eder, J., concurs with Hammer, J.; Hecht, J., dissents in opinion. 1
Final order affirmed, etc.,