FORM No. 286. Notice by creditor, to surety, of demand made on principal.31 day of 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 Forms 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 upon the sureties.]34 31 As to when such notice is requisite, see Hernandez v. Stilwell, 7 Daly, 360. When not requisite, Cordier v. 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. Cottle, 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 recov ered. Nickerson v. Chatterton, 7 Cal. 568. 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 sureties upon such undertaking, of written notice of the entry of the order or judgment affirming the judgment or 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. 225. Nor to an undertaking given oa 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 t'e appeal. Yates v. Burch, 87 N. Y. 409. It is the judgment dismissing the appeal and awarding a 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. 33 Death of attorney, and failure to appoint another after notice, excuses this branch of the required service. Chilson r. 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 38 I hereby request you to forthwith 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 it39], and if you fail to do so, I shall hold myself exonerated.40 [Date.] [Address] To FORM No. 289. [Signature.] Notice to quit, for nonpayment of rent, before ejectment.42 To [name of tenant and intended defendant]. Take notice, that I intend to re-enter on the premises [describing them] demised by to , and [a part] of which you have possession [and to terminate the lease], unless the 35 At common law such notice is not effectual to secure exoneration unless the principal was solvent at the time, or the demand then collectible; and, during delay to proceed, insolvency or loss of the collection against him intervened. Auburn Sav. Bank v. Brinkerhoff, 44 Hun, 142; Russell t. Weinberg, 4 Abb. N. C. 139; Kennedy v. Folde (Dak., 1886), 29 N. W. Rep. 667. See also Wheeler r. Benedict. 36 Hun, 478; Brandt on Suret., § 206, etc.; Bruce r. Edwards, 1 Stew. (Ala.) 11, 18 Am. Dec. 33; Toles v. Adee, 91 N. Y. 562. In several of the States there are statutes giving a broader right to the surety, the terms of which should be consulted in drawing a notice under them. In equity the surety may himself sue his principal to compel the latter to pay the creditor. Thompson . Taylor, 72 N. Y. 32. Compare Slauson v. Watkins, 95 N. Y. 369. The above Form is sustained by Strickler v. Burkholder, 47 Pa. St. 476; Routon t. Lacy, 17 Mo. 399; Meriden Silver Plate Co. r. Flory (Ohio, 1886), 7 N. E. Rep. 753, although in this last case the conditional clause, "if you hold any note, etc.." was prefixed. 36 The cause of action must have accrued. Notice at a time when the creditor could not yet sue is not enough. Scales r. Cox (Ind., 1886), 6 N. E. Rep. 622; Hellen v. Crawford, 44 Pa. St. 105. Compare Hunt . Purdy, 82 N. Y. 486, 37 Am. Rep. 587. 37 Notifying him to arrange the matter is not enough. Baker v. Kellogg, 29 Ohio St. 663. Nor to push the debtor, and keep pushing him. Singer v. Troutman, 49 Barb. 182. Nor is notice to put in way of collec tion. Kaufman v. Wilson, 29 Ind. 504; Bates v. State Bank, 7 Ark. 394, 46 Am. Dec. 293. 38 Under the Iowa statute, held that notice merely to sue the principal was not enough. Harriman t. Egbert, 36 Iowa, 270. 39 Any method of describing which makes it impossible for the creditor to mistake, is enough. Routon v. Lacy, 17 Mo. 399. 40 An explicit declaration to this effect was held essential in Greenawalt. Kreider, 3 Pa. St. 264; Erie Bank . Gibson, 1 Watts (Pa.) 143. In Turner r. Hale, 8 Kans. 38, it was held that notice must be to sae, or permit the surety to do so, in the creditor's name. Compare Slauson r. Watkins, 95 N. Y. 369, and cases cited. 41 Personal service is desirable for convenience of proof. Service by mail was held enough in Vancil v. Hagler. 27 Kans. 407 (under Ill. statut). 42 Under N. Y. Code Civ. Pro., § 1505, serve on intended defendant, personally, or by leaving at his dwelling-house on the premises, with a person of suitable age and discretion; arrears of rent now due thereon shall be paid within fifteen days after the service of this notice.4 [Date.] To Y. Z. 44 Notice to quit, to tenant at will or by sufferance.45 Take notice, that I hereby terminate your tenancy46 of [describ or, if defendant cannot be found with due diligence, and has no dwellinghouse on the premises whereat a person of suitable age and discretion can be found, by posting it in a conspicuous place on the premises. See, as to history of this Code section, Martin v. Rector, 118 N. Y. 476; Bulger v. Coyne, 20 App. Div. 224, 46 N. Y. Supp. 1007. This form of notice applies not only where the right of re-entry is expressly reserved, but also where the lease provides for its termination on default in payment of rent, though the right of re-entry is not expressly reserved. Horton v. N. Y. C. & H. K. R. R. Co., 12 Abb. N. C. 30. This form is supported by Van Rensselaer v. Snyder, 9 Barb. 309 (lease in fee), aff'd, 13 N. Y. (3 Kern.) 299. See the Act of 1846, abolishing distress for rent. (L. 1846, 369, chap. 274, § 3), Mayor, etc., of New York v. Campbell, 18 Barb. 156 (lease in fee); Keeler v. Davis, 5 Duer, 507 (lease for term of years). Under a lease reserving a right to re-enter, in case of nonpayment, if it appears on the face of the complaint that there was no sufficiency of goods whereon to distrain, the above notice to quit, required by the Act of 1846, is not necessary. Rogers v. Lynds, 14 Wend. 172 (lease for term of years); Mayor, etc., of New York v. Campbell, 18 Barb. 156. Though the common law mode of re-entry is not taken away by the Act of 1846, an entry pursuant to that Act does not require the formalities, as to demand, of a common law entry. The statute notice, as above, is enough. Van Rensselaer r. Smith, 27 Barb. 104 (lease for term of years). A landlord may bring ejectment for recovery of possession of the demised premises when six months' rent or more is in arrear, and the service of a complaint in such action of eject ment is a sufficient demand. N. Y. Code Civ. Pro., § 1504, superseding 2 N. Y. R. S., § 30. See also Van Rensselaer v. Ball, 19 N. Y. 100, affirming 27 Barb. 104 (lease in fee). 43 It is the safer practice to insert the words "and to terminate the lease," where the right to so terminate it on default, expressly reserved in the lease, is relied on as the ground of re-entry. 44 Express provision in the lease may give the right of re-entry immediately on nonpayment, or on less than fifteen days' notice; but if less than fifteen days' notice is not expressly provided for, it is better to give notice for that length of time, in analogy to the statute, before bringing ejectment. Under a statute requiring notice that unless payment of rent due “is made within a time mentioned in the notice, not less than five days after the service thereof, the lease will be terminated," a notice which does not mention any time for payment of rent due except "within five days from the date of the service of this notice," sufficiently complies with the statute. Farnam v. Hohman, 90 Ill. 312. 66 Under a statute requiring “fourteen days' notice to quit," a notice to quit forthwith," held insufficient, though suit was not commenced for more than fourteen days after its service. Oakes v. Munroe, 8 Cush. (Mass.) 282. 45 Thirty days' notice to quit is necessary. N. Y. Real Property Law, § 198. For cases where notice to quit is necessary, see Chaplin on Landl. & l., § 626. It is not necessary where the terins on which a lease is to terminate are fixed by the parties. Allen v. Jaquish, 21 Wend. 628. 46 Mere holding over does not create a tenancy by sufferance under the statute, without a continuance of the ing the premises7], and require you to removes therefrom on or before the day of 49 19 .4 " [Date.] FORM No. 291. [Signature.50] Notice to quit, where there is an agreed tenancy from year to year, or month To [name of tenant52]. to month.51 Take notice, that I hereby terminate your tenancy of [describing premises53] at the end of the current year [or, current month** holding under such circumstances as to create an implication of the landlord's assent. Smith v. Littlefield, i 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 v. 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 Ill. 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, and 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 terminates. The rights of both parties are fixed by it, and are dependent on 11. 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 fix, 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 Cusi. (Mass.) 93; Granger v. 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. 66 But in Burns v. 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 month. 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., say, that service on 25th April would terminate a tenancy on 26th May, if that was the end of the monthly period. But in McGuire v. Ulrich, 2 Abb. 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, netd 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 . 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 available to the grantee. Grittin v. Barton, 22 Misc. 228, 49 N. Y. Supp. 1021, aff d, 27 App. Div. 632. A purchaser from the lessor, who has not obtained the legal title, cannot give such notice. Reeder v. Sayre (above). 51 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 r. Castle, 19 How. Pr. 29. But a tenancy 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 v. Aikin, 11 N. Y. 494; Laughran v. Smith, 75 id. 205. Cohoes, supra. Compare Adamɛ v. Such notice is necessary in case of a tenancy from year to year, growing [Signature.] out of a parol lease void by the Statute of Frauds. Coudert v. Cohn, 118 N. Y. 309; Reeder v. Sayre, 70 N. 1. 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 Ideemed 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 the 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 tenant. Jackson v. Baker, 10 Johns. 270. 53 See note 47, on p. 30. 54 A tenant hiring from month to month held not entitled to notice to quit. Gibbons v. Dayton, 4 Hun, 451. 66 Under a lease for the term of one year and an indefinite period thereafter," at an annual rent, s10 months' notice was regarded as necessary 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 v. 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 terminab.e 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 to year. But on this point see Park v. Castle, 19 How. Pr. 29. The time of one month given by the notice must have reference to the end of a monla computed from the commencement of the tenancy. Steffens v. Earl, 11 |