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made; and that the land had not in the meantime been redeemed. It also appears that the notice, or a copy thereof, together with the affidavit of the service, must be filed within one month in the office of the comptroller. There they must remain. No authority is given for their removal from the office of the comptroller for record in any of the other counties of the state.

I am, therefore, of the opinion that the recording of the deed being prohibited until the proofs of the service of the notice to redeem had been made, and the time therein specified had expired, and the certificate of the comptroller to that effect had been given, the certificate became the evidence of the notice and the service thereof, which is required by the statute to be recorded in connection with the deed. The other questions raised upon the motion for re-argument require no further comment. The original opinion has been revised so as to be in accord with the views herein expressed.

The motion for re-argument should be denied.

CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, VANN, WERNER and HISCOCK, JJ., concur.

Motion denied.

JAMES KENNEDY, Appellant, v. THE CITY OF NEW YORK,

Respondent.

tenancy from year to year

each year

Landlord and tenant constitutes a new term-claim for unpaid rent for each year, separate cause of action.

In this jurisdiction it is the rule, settled by long acquiescence, that where several sums or installments are due upon a single contract, they must all be united in one action; and if several suits are brought upon such an indivisible contract for separate installments after all are due, a recovery upon one will be a bar to the others; this rule, however, applies only to such claims as are single, entire and indivisible.

A tenancy from year to year, created by the tenant's holding over after the expiration of his original term, is a new term for each year of such holding over, upon the terms of the original lease so far as they are

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applicable to the new relation. Hence, a claim for unpaid rent for each year of such a holding over creates a separate and distinct cause of action. Such separate causes of action may be joined in cne suit, or each may be made the subject of an independent action. Kennedy v. City of New York, 127 App. Div. 89, reversed.

(Argued June 17, 1909; decided October 5, 1909.)

APPEAL from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 12, 1908, which reversed a judgment in favor of plaintiff entered upon a verdict directed by the court and an order denying a motion for a new trial and directed a dismissal of the complaint.

The plaintiff is the owner of certain premises situated in that part of the city of New York formerly known as Long Island City. These premises had been leased to the latter city by one of the plaintiff's predecessors in title for a term of five years from January 1st, 1891. The lease was in writing and the rent reserved was $5,000 a year, payable monthly in advance. At the expiration of the term in January, 1896, the original lessee and its successor in interest, the city of New York, held over and continued in possession of the premises until some time in the year 1899, when the premises were abandoned.

On account of the defendant's holding over into the month of January, 1899, the plaintiff elected to treat it as a tenant for that year, and commenced two actions against it to recover the rent for that period. These two actions were commenced in 1905, and they were consolidated by order of the court. The present appeal is from the judgment rendered in the consolidated action.

Prior to the commencement of the two actions thus consolidated, and in 1904, the plaintiff had instituted another action against the defendant to recover the rent of the same premises for certain months of the year 1898. That first action, it will be observed, was instituted long after the rent for both the years 1898 and 1899 had accrued. In that first action the defendant made an offer of judgment, which offer

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was accepted and upon which a judgment was entered in February, 1905.

After the entry of judgment upon that offer the defendant interposed answers in the actions which had been commenced to recover the rent for the year 1899, setting up the judg ment for the rent of 1898 as a bar to any recovery in the actions for the rent of 1899, and alleging that as the rent for both the years 1898 and 1899 was due at the time the judg ment for the rent of 1898 was entered, the plaintiff was bound to unite in one action all its claims then due. The trial court overruled this defense and directed the jury to bring in a verdict for the plaintiff. Upon appeal the Appellate Division sustained the defense of the former recovery as a bar, reversed the judgment and dismissed the complaint. From that judgment the plaintiff now appeals to this court.

Hector M. Hitchings and F. II. Van Vechten for appellant. The decision of the Appellate Division that plaintiff estopped himself from bringing or maintaining this action by his settlement of another action for prior rent of the same premises is erroneous. (Schuyler v. Smith, 51 N. Y. 309; Adams v. City of Cohoes, 127 N. Y. 182; Herter v. Muller, 159 N. Y. 45; Haynes v. Aldrich, 133 N. Y. 287; Woods v. Pangborn, 75 N. Y. 495; Miller v. U. S. & S. Co., 13 N. Y. Supp. 711; Nathans v. Hope, 77 N. Y. 420; Secor v. Sturgis, 16 N. Y. 548; Millard v. M., K. & T. R. R. Co., 20 Hun, 191; 86 N. Y. 441; Phillips v. Berick, 16 Johns. 136; Perry v. Dickerson, 85 N. Y. 345; Zimmermann v. Erhard, 83 N. Y. 74; Byrnes v. Byrnes, 102 N. Y. 4.)

Francis K. Pendleton, Corporation Counsel (Clarence L. Barber and Theodore Connoly of counsel), for respondent. The holding over by the tenant in 1898 and 1899 did not constitute separate contracts. They were simply extensions or enlargements of the lease executed December 31, 1891. Therefore, judgment for the rent of 1898 and payment thereof operated as a bar to the subsequent action for the rent of

Opinion of the Court, per WERNER, J.

[Vol. 196.

1899. (Perry v. Dickerson, 85 N. Y. 347; Baylies v. Ingram, 84 App. Div. 362; Secor v. Sturgis, 16 N. Y. 557; Lorillard v. Clyde, 122 N. Y. 45; Seed v. Johnston, 63 App. Div. 340; Pakas v. Hollingshead, 184 N. Y. 218.)

WERNER, J. The question to be decided is whether the defendant's liability for the rent of the years 1898 and 1899 arose out of a single contract or out of two distinct contracts, and that depends upon the underlying question whether a holding over from year to year, after the expiration of a definite term, is merely an extension or enlargement of the original term, or whether such a holding over constitutes a new term for each year that it continues.

In this jurisdiction it is the rule, settled by long acquiescence, that where several sums or installments are due upon a single contract, they must all be united in one action; and if several suits are brought upon such an indivisible contract, for separate installments after all are due, a recovery upon one will be a bar as to the others. The reason for the rule lies in the necessity for preventing vexatious and oppressive litigation, and its purpose is accomplished by forbidding the division of a single cause of action so as to maintain several suits.when a single suit will suffice. (Perry v. Dickerson, 85 N. Y. 345, 347; Lorillard v. Clyde, 122 id. 41; Pakas v. Hollingshead, 184 N. Y. 211.) It is to be emphasized, however, that the rule applies only to such claims as are single, entire and indivisible. (Secor v. Sturgis, 16 N. Y. 548, 554.)

The Appellate Division has held that the balance of rent due for the year 1898, and the whole of the rent due for the year 1899, were parts of a single or indivisible demand; that although separate actions might have been maintained for each of the monthly installments as they became due, no such procedure was permissible after they all became due; that the same rule applies to the rent for the years 1898 and 1899 where no action was brought to recover either amount until after all was due; and that the judgment for the rent of 1898 was, therefore, a bar to the action to recover the rent of

N. Y. Rep.]

Opinion of the Court, per WERNER, J.

1899. The correctness of this reasoning cannot be successfully challenged if the defendant's occupation of the premises during 1898 and 1899 was nothing more than an extension or prolongation of the original term; and it is palpably unsound if the holding over during these years constituted two separate and distinct terms. We must decide, therefore, which of these conditions existed.

A tenant who holds over after the expiration of a definite term for a year or years may be treated by his landlord as a trespasser, or as a tenant from year to year. If the landord elects to treat the tenant as holding over for another year, the conditions of the original lease apply, except as to duration. (Haynes v. Aldrich, 133 N. Y. 287; Adams v. City of Cohoes, 127 id. 175.) Under such a holding over a tenant is bound for another year, not by virtue of an express contract but by implication of law springing from the circumstances. (Herter v. Mullen, 159 N. Y. 28, 43.) The only logical deduction from the choice thus given to the landlord of treating a holdover tenant either as a trespasser or as a tenant for another year is that each holding over, where acquiesced in by the landlord, constitutes a new term, separate and distinct from those which preceded it, and related to each other only in the conditions of the original lease which the law reads into the new tenancy. Some of the text writers and a few of the earlier decisions seem to have confused the subject by referring to tenancies from year to year, arising by operation of law, as continuations of the original terms, when it would have been more correct to characterize them as new tenancies subject to the original conditions. The later decisions in this court have, however, defined this species of tenancy with a precision that admits of no misunderstanding. In the case of United M. Realty & Impr. Co. v. Roth (193 N. Y. 570, 576) it was held, upon the opinion of Chief Judge CULLEN, that "the right of the landlord to treat the holdover as a tenant for a new term does not spring from the contract of the parties but is the penalty imposed by law upon the trespassing tenant." The same

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