Erickson v. Jones

Vanderburgh, J.

As between landlord and tenant, unless the right to remove fixtures after the expiration of the term is specially reserved in the lease, the rule is well settled that such fixtures must be removed by the tenant before his term expires, or at least while he continues to hold possession as tenant. Where, however, his tenure is uncertain, and such that it may be determined unexpectedly to him, this rule is modified so as to allow a reasonable time for the removal of fixtures after the termination of the lease. Ombony v. Jones, 19 N. Y. 234, 238 ; Loughran v. Ross, 45 N. Y. 792, 797 .

This qualification is usually applied to leases of uncertain duration, as for life, or at will, or until the happening of some event. But where, as in this state, by statute, leases at will can only be terminated after reasonable notice, it would seem that, in ordinary eases, the time limited for the expiration of the term is rendered sufficiently definite to warrant the application of the general rule. In any event, we see no reason why it should not have been applied in the case at bar. Tyler, Fixt. *453.

The plaintiff occupied certain premises of defendant as tenant at will. The building in controversy, which was placed on the land by the plaintiff’s assignor, and purchased and occupied by the plaintiff, it is conceded was a fixture as between landlord and tenant, and the latter had a right to remove it if such removal was seasonably effected. Whether he had lost such right by delay is the question to be determined here. He was ejected from the premises after due notice to quit, and for default in the payment of rent due. The char *461 acter of the tenancy, and this defendant’s right to put an end to the lease, and recover possession, were determined in the proceedings, for forcible detainer referred to by the court in its findings, the record of which was introduced in evidence, and is made part of the settled case returned here. In that action, which was between the same parties, it was alleged and found that the plaintiff herein was largely in arrears for rent, and that due notice to quit was served on him as tenant at will, and that he was ejected under process served months thereafter; so that he had ample notice and opportunity to remove the building before he was dispossessed. This action for the alleged subsequent conversion of the same by the defendant cannot, therefore, be maintained.

Order reversed, and case remanded.