Canonico v. Lucente

Landlord and tenant — Option for additional term — Notice. Where a lease provides for a letting for one year “with the right for a further term of four years,’’ and the lessee holds over, the holding over is sufficient notice to the lessor of an election to exercise the privilege. In such a case no other notice is necessary.

Appeal, No. 204, April T., 1909, by plaintiff, from judgment of C. P. Somerset Co., Dec. T., 1906, No. 249, on verdict for defendant in case of Augustino Canónico v. Joseph Lucente et al. Ejectment for a lot of ground in Summit township. Before Kooser, P. J. At the trial title was conceded to have been in Wm. Boor who on November 16, 1905, leased the premises to A. Lucente, one of the appellees, “for the term of one year, from said date, .... with the right for a further term of four years from the 15th day of November, 1906.” The lease also contained the following clause: “It further being agreed and understood between the parties hereto, that the party of the second part shall not be permitted to sell or assign this Agreement without the written consent of first party.” On August 30, 1906, Wm. H. Boor and wife conveyed the premises to the appellant by deed which was duly recorded and on the same day the lease was assigned by Boor to the appellant. Canónico claiming that the lease had been forfeited by reason of an assignment or sale from A. Lucente to Joseph Lucente, on September 4,1906, gave notice to the party in possession, J. Lucente, to vacate the premises in thirty days. The defendant denied any sale or assignment and no attention was paid to this notice, and the first year, or first term of the lease having expired on November 15, Canónico instituted this action of ejectment on November 17, 1906. On December 31, 1906, the defendant filed a motion to set aside the service of the writ, etc., and on December 12, A. Lucente, the original lessee, filed a petition to intervene as defendant and the proceedings in the attempt to set aside the service of the summons and rule of reference were pending in court until January 22, 1907, when they were disposed of by the court, the rule of reference being set aside and the motion to set aside the service of the writ being overruled. On February 1, 1907, the defendants filed their pleas, answer and abstract of title. No notice was ever given by lessee to Canónico or to Boor, the original lessor, of an intention to occupy the premises for the further term of four years. On the trial of the case appellant contended that in the absence of notice of an election by the lessee the landlord had a right to treat him as a trespasser and maintain his action of ejectment, but the court held that the mere holding over by the tenant was sufficient notice to the landlord, and that no other notice of election on his part was necessary. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was in refusing binding instructions for plaintiff.