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order appealed from, or dismissing the appeal; and if an appeal is taken to the Court of Appeals, the action is further postponed until final determination of that appeal. This does not apply to special security required by the court, independent of the statute. Rice v. Whitlock, 16 Abb. Pr. 2:25. Nor to an undertaking given ou appeal to the Court of Appeals. Sterne v. Talbot, 89 Hun, 368, 35 N. Y. Supp. 412.
It is not necessary that the notice state the amount of costs added on to appeal. Yates v. Burch, 87 N. Y. 409.
It is the judgment dismissing the appeal and awarding definite amount of costs, rather than the order for dismissal, of which the sureties must be notified. Loweree v. Tallman, 30 App. Div. 225, 52 N. Y. Supp. 341, 28 Civ. Pro. Rep. 21.
FORM No. 286.
Notice by creditor, to surety, of demand made on principal.31 Please take notice, that I have duly demanded of M. N., payment of the rent accruing for the month of March, 1906, under the lease executed on the
19 by said M. N. as principal] and by you as surety, and that said M. N. has failed to pay [the sum of dollars, part of] the same.
[Date, address, and signature as in Form No. 288.]
FORM No. 287.
Notice of judgment before suit on undertaking on appeal.32 [Serve copy of Judgment, with Notice of Entry as in Forns No. 134, p. 278, inserting“ a judgment” in place of “ an order.”]
[If notice is given under Code Civ. Pro., § 1309, serve on. appellant's attorney,33 and
ироп.. the sureties.]34
31 As to when such notice is requisite, see Hernandez v. Stilwell, 7 Daly, 360. When not requisite, Cordier i. Thompson, 8 Daly, 172; Eneas v. Hoops, 42 N. Y. Super. Ct. 517.
32 See, as to substantial compliance with the requirement of notice to the appellant's attorney, Milligan v. Cat. tle, 92 Hun, 323, 36 N. Y. Supp. 904.
In general, in an action on an undertaking in the usual form, which does not in terms call for notice to the sureties of affirmance, nor for demand of payment, it is not necessary to aver or prove notice or demand. Heebner v. Townsend, 8 Abb. Pr. 234. The plaintiffs are not bound to exhaust the remedy on the judgment before bringing an action on an undertaking, given before its recovery, for its payment if it should be recorered. Nickerson v. Chatterton, 7 Cal. 508.
But by N. Y. Code Civ. Pro., 1309, no action lies upon any undertaking on appeal to the Appellate Division until ten days after service on the appellant's attorney, and upon the sure. tjes upon such undertaking, of written notice of the entry of the order or judgment affirming the judgment or
33 Death of attorney, and failure to appoint another after notice, excuses this branch of the required service. Chilson v. Howe, 23 N. Y. St. Rep. 126, 17 Civ. Pro. Rep. 86.
34 Service upon the sureties may be by mail to their last known postoffice address, Code Civ. Pro., § 1309.
FORM No. 288.
Notice by surety requiring creditor to sue principal.35 I hereby request you to forth with 36 sue37 Y. Z. [on the note made by him, as principal, and signed by me as surety, dated, etc., payable to, etc., for, etc., describing it sufficiently to identify it'], and if you fail to do so, I shall hold myself exonerated. 40 [Date.]
[Signature.] [Address“l] TO
FORM No. 289.
Take notice, that I intend to re-enter on the premises [describing them] demised by
and [a part] of which you have possession [and to terminate the lease43], unless the
35 At common law such notice is 44 Pa. St. 105. Compare Hunt t. not effectual to secure exoneration un Purdy, 82 N. Y. 486, 37 Am. Rep. 587. less the principal was solvent at the 37 Notifying him to arrange the time, or the demand then collectible; matter is not enough. Baker v. Keland, during delay to proceed, insolv logg, 29 Ohio St. 663. Nor to push ency or loss of the collection against the debtor, and keep pushing him. him intervened. Auburn Sav. Bank Singer 1. Troutman, 49 Barb. 182. v. Brinkerhoff, 44 Hun, 142; Russell Nor is notice to put in way of collect. Weinberg, 4 Abb. N. C. 139; Ken tion. Kaufman v. Wilson, 29 Ind. nedy v. Folde (Dak., 1886), 29 N. W. 504: Bates v. State Bank, 7 Ark. 394, Rep. 667. See also Wheeler 1. Bene 46 Am, Dec. 293. dict. 36 Hun, 478; Brandt on Suret., 38 Under the lowa statute, held that 8 206, etc.; Bruce 1'. Edwards, I Stew. notice merely to sue the principal was (Ala.) ll, 18 Am. Dec. 33; Toles v. not enough. Harriman 1. Egbert, 30 Adee, 91 N. Y. 562.
Iowa, 270. In several of the States there are 39 Any method of describing which statutes giving a broader right to the makes it impossible for the creditor surety, the terms of which should be to mistake, is enough. Routon 0. consulted in drawing a notice under Lacy, 17 Mo. 399. them.
40 An explicit declaration to this In equity the surety may himself cirect was held essential in Greena. sue his principal to compel the latter walt u. Kreider, 3 Pa. St. 264; Erie to pay the creditor. Thompson v. Bank 1. Gibson, 1 Watts (Pa.) 143. Tavlor, 72 N. Y. 32. Compare Slauson In Turner 1. Hale, 8 Kans. 38, it v. Watkins, 95 N. Y. 369.
was held that notice must be tn sue, The above form is sustained hy or permit the surety to do so, in the Strickler v. Burkholder, 47 Pa. St. creditor's name. Compare Slauson r. 476; Routon . Lacy, 17 Mo. 399; Watkins, 95 N. Y. 369, and cases Meriden Silver Plate Co. t. Florv cited. (Ohio, 1886), 7 N. E. Rep. 753, al. 41 Personal service is desirable for though in this last case the condi convenience of proof. Service by mail tional clause, “ if you hold any note, was held enough in Vancil v. lagler. etc.," was prefixed.
27 Kans. 407 (under III. statut?). 36 The cause of action must have 42 Under N. Y. Code Civ. Pro., accrued. Notice at a time when the $ 1505, serve on intended defendant, creditor could not yet sue is not personally, or by leaving at his dwellenough. Scales v. Cox (Ind., 1886), ing-house on the premises, with a 6 N. E. Rep. 622; Hellen v. Crawford, person of suitable age and discretion;
arrears of rent now due thereon shall be paid within fifteen days after the service of this notice. 44 [Date.]
[Signature.] FORM No. 290. Notice to quit, to tenant at will or by sufferance.45 To Y. Z.
Take notice, that I hereby terminate your tenancy#6 of [describor, if defendant cannot be found wich ment is a sufficient demand. N. Y. due diligence, and lias no dwein Code Civ. Pro., $ 1504, superseding house on the premises whereat a per 2 N. Y. R. S., $ 30. See also Van son of suitable age and discretion can Rensselaer V. Ball, 19 N. Y. 100, be found, by posting it in a conspicu allirming 27 Barb. 104 (lease in fee). ous place on the premises. See, as to 43 It is the safer practice to insert history of this Code section, Martin r. the words “and to terminate the Rector, 118 N. Y. 476; Bulger v. lease,” where the right to so termiCoyne, 20 App. Div. 224, 46 N. Y. nate it on default, expressly reservea Supr. 1007.
in the lease, is relied on as the ground This form of notice applies not only of re-entry. where the right of re-entry is ex. 44 Express provision in the lease pressly reserved, but also where the may give the right of re-entry immelease provides for its termination on diately on nonpayment, or
on less default in payment of rent, though than fifteen days' notice; but if less the right of re-entry is not expressly than fifteen days' notice is not exreserved. Horton v. N. Y. C. & H. R. pressly provided for, it is better to R. R. Co., 12 Abb. N. C. 30.
give notice for that length of time, in This form is supported by Van analogy to the statute, before bringRensselaer v. Snyder, 9 Barb. 303 ing ejectment. (lease in fee), aff’d, 13 N. Y. (3 Under a statute requiring notice Kern.) 299. See the Act of 1846, that unless payment of rent due “ 18 abolishing distress for rent. (L. 1846, made within a time mentioned in the 369, chap. 274, § 3), Mayor, etc., of notice, not less than five days after New York v. Campbell, 18 Barb. 156 the service thereof, the lease will be (lease in fee); Keeler v. Davis, 5 terminated," a notice which does not vuer, 507 (lease for term of years). mention any time for payment of rent,
Under a lease reserving a right to due except“ within five days from the re-enter, in case of nonpayment, if 10 date of the service of this notice," appears on the face of the complaint suficiently complies with the statutc. that there was no sufficiency of goods Farnam v. Hohman, 90 III. 312. whereon to distrain, the above notice Under a statute requiring
“ fourto quit, required by the Act of 1846, teen days' notice to quit,” a notice to is not necessary. Rogers v. Lynds, 14 quit forthwith,” held insullicient, Wend. 172 (lease for term of years); though suit was not commenced for Mayor, etc., of New York v. Campbell, more than fourteen days after its 18 Barb. 156.
service. Oakes v. Munroe, 8 Cush. Though the common law mode of (Mass.) 282. re-entry is not taken away by the Act 45 Thirty days' notice to quit is of 1846, an entry pursuant to that Act necessary. N. Y. Real Property Law, does not require the formalities, as to § 198. demand, of a common law entry. The For cases where notice to quit is statute notice, as above, is enough. necessary, see Chaplin on Landl. & I., Van Rensselaer v. Smith, 27 Barb. 104 $ 626. It is not necessary where the (lease for term of years).
tering on which a lease is to terminate A landlord may bring ejectment for are fixed by the parties. Allen u. recovery of possession of the demisca Jamui-h, 21 Wend. 628. premises when six months' rent or 46 Vere holding over does not creato more is in arrear, and the service oi a tenancy by sufferance under the a complaint in such action of eject. statute, without a continuance of the
ing the premises4?], and require you to remove therefrom on or before the
FORM No. 291. Notice to quit, where there is an agreed tenancy from year to year, or month
to month.51 To [name of tenant52].
Take notice, that I hereby terminate your tenancy of [describing premises83) at the end of the current year (or, current month54
holding under such circumstances as to create an implication of the landlord's assent. Smith r. Littlefield, ou N. Y. 539; Coudert v. Cohn, 118 id. 309.
Where one enters upon land by permission of the owner for an indefinite period, even without the reservation of rent, he is by implication of law a tenant at will, and entitled to notice under the statute. Larned t. Hudson, 60 N. Y. 102.
47 The description should be such as cannot mislead, but detailed description by metes and bounds can rarely be necessary, or even appropriate.
For cases on defects or supposed defects in indicating the premises, see the following:
Farnam v. Hohman, 90 III. 312 (error in designating lot and block as in “ R.'s addition to," etc., instead of in "original town of,” etc., disregarded on explanatory evidence, not objected to).
Cummings v. Winters (Neb., 1886), 28 N. W. Rep. 302. ("T. 7, R. 7," held, in view of the well-understood government usage, sufficiently to designate Township 7, Range 7.)
Kuhn v. Kuhn (Iowa, 1886), 28 N. W. Rep. 541 (holding that under a lease for the purpose of building a dwelling for the tenant, to be occupied by him as long as he continued in the lessor's employ, a notice to quit the house was equivalent to notice to quit the land).
48 Notice “ to leave” held equivalent to notice “ to quit.” Douglass v. Anderson, 32 Kans. 350.
49 " The notice to quit is technical, ind is well understood; it fixes a time
at which the tenant is bound to quit, and the landlord has a right to enter, and a time at which the rent termr nates. The rights of both parties are fixed by it, and are dependent on it. Should the landlord decline to enter, and the tenant quit according to notice, the tenant could no longer be holden for rent, although he had given no notice to the landlord. The lease is 'determined' by such notice, properly given, by either party. It is manifest, therefore, that when such consequences depend upon the notice to be given, the notice should tia, with reasonable exactness, the time ac which these consequences may begin to take effect.” Shaw, C. J., in Currier v. Barker, 2 Gray (Mass.) 224 [citing Sanford v. Harvey, 11 Cusii. (Mass.) 93; Granger i. Brown, Id. 191), where a notice to a tenant at will " to quit and deliver up” prem. ises, but fixing no time, by naming a day or otherwise, was held insufficient.
But in Burns r. Bryant, 21 N. Y. 453, a notice specifying a day four days short of the month specified by statute, was held sufficient as against a tenant committing trespasses subsequent to the expiration of the montn. To similar effect, People v. Shackno, 48 Barb. 551.
The safer practice is to exclude both the day of service and the day of expiration of term. Banks v. Carter, 7 Daly, 417, where Daly, C. J., says, that service on 25th April would terminate a tenancy on 26th May, if that was the end of the monthly period. But in McGuire 1. Ulrich, 2 Abh, Pr. 28, it was held that a notice of thirty days given during a calendar monta
of your tenancy, which will expire next after the end of one-half year (or, of one month] from the service of this notice, and I require you to remove therefrom and give me full possession thereof on or before such day.55 [Date.]
which contains but thirty days, is a ** month's notice.“
Under a stipulation that the tenant should quit on ten days' notice, a notice requiring him to surrender possession as soon as practicable, neid insufficient. People v. Gedney. 15 Hun. 475,
Adding: “I hereby give you further notice that should you fail to quit as above required I shall insist on double rent therefor” (or other specified rate), does not vitiate. Doe v. Jackson, 1 Dougl. 175 (Ld. Mansfield); Ahearn v. Bellman, L. R. 4 Exch. Div. 201. Otherwise if it give the option, Byrne v. Funk, 13 Wkly. Notes of Cases, 503.
50 A notice to quit may be given either by the landlord or his authorized agent, or any person legally entitled to the reversion as assignee, . devisee, heir or executor, or receiver with power to let, but not if he has only power to receive rents. Reeder v. Sayre, 70 N. Y. 180 (dictum). A notice given by the lessor, after he has sold the premises, is not availavie to the grantee. Griffin v. Barton, 24 Misc. 228, 49 N. Y. Supp. 1021, aff d, 27 App. Div. 632. A purchaser froza the lessor, who has not obtained the legal title, cannot give such notice. Reeder v. Sayre (above).
31 A tenant for a year or for one or more years, holding over without any express agreement, though regarded as a tenant from year to year, was held not entitled to notice to quit, in Adams v. Cohoes, 127 N. Y. 175; Park t'. Castle, 19 How. Pr. 29. But a ten. ancy from year to year, for an indefinite number of years, created by the agreement of the parties, continues until terminated by notice, by one of the parties, that it is to expire at the end of the current year. Pugsley 0. Aikin, 11 N. Y. 494; Laugnran v. Smith, 75 id. 205. Compare Adams v. Cohoes, supra.
Such notice is necessary in case of a tenancy from year to year, growing
out of a parol lease void by the Statute of Frauds. Coudert v. Cohn, 118 N. Y. 309; Reeder v. Sayre, 70 N. Y. 180; Laughran v. Smith (supra).
Under N. Y. Real Property Law, $ 202, agreements for the occupation of real property in New York city, which do not particularly specify the duration of such occupation, shall be deemed to continue until the first of May next after the possession shall commence.
52 The notice is to be addressed to the immediate lessee who pays tue annual rent, without reference to his servant or subtenant who may be in possession, but who has not been recognized by the lessor as his tenanu. Jackson v. Baker, 10 Johns. 270.
53 See note 47, on p. 630.
54 A tenant hiring from month to month held not entitled to notice to quit. Gibbons v. Dayton, 4 Hun, 451.
Under a lease “for the term of one year and an indefinite period thereafter," at an annual rent, $138 months' notice was regarded as neces. sary to terminate the tenancy. Pugsley v. Aikin, 11 N. Y. 494. So in case of a parol lease void by the Statute of Frauds. Laughran 1. Smith, 75 id. 205.
But in case of a parol lease void by the Statute of Frauds, it appearing that the tenant had paid monthly, held, that the tenancy was terminable on one month's notice. People v. Darling, 47 N. Y. 666. But the fact of such monthly payment was not held controlling, under the circumstances, in Laughran v. Smith (supra).
55 The notice must fix a time to quit. Wright v. Mosher, 16 now. Pr. 454, where the tenancy was regarded by the court as at will from year lo year. But on this point sce Park ». Castle, 19 Hlow. Pr. 29. The time of one month given by the notice müst have reference to the end of a monla computed from the commencement of the tenancy.
Steffens 1. Earl, 11