1. The term of a tenant at will does not expire at the instance of the landlord until after the expiration of two. months after notice from his landlord to terminate the tenancy. Civil Code (1910), § 3709.
2. Where the landlord seeks by summary process to dispossess his tenant upon the ground that the latter is a tenant at will holding over after the expiration of his term, and where the tenant, in his counter-affidavit arresting the proceeding, alleges that his term has not expired, there is presented an issue as to whether the requisite two-months notice to vacate has been given to the tenant by the landlord; and where the evidence is silent upon this issue, the plaintiff can not prevail. It follows therefore that a verdict for the defendant can not be set aside upon the ground that it was contrary to law and without evidence to support it.
Judgment affirmed.
Jenkins, P. J., and Hill, J., concur.