RUGGLES, J.

The lease from Chretien to Doney was a lease for one year, or for two years, one month and twenty days, at the option of Doney. Doney's election to give up the premises at the end of the first year, was to be signified by a notice of at least four months before the expiration of that year. If he failed to give that notice, the contract became a lease for the longer time. No new writing or agreement was contemplated between the parties. Although the amount of rent and the time or times of payment for the extended term, are not expressed, that omission is supplied by construction of law. The right to hold during the extended term is given to Doney in plain and express language, in the lease; and the legal inference is that he should pay rent at the same rate as for the shorter term, and at corresponding times. The rent, therefore, for the extended term was at the rate of $500 a year — ten per cent. of which was payable at the commencement, and the residue in seven equal monthly instalments.

The affidavit of the landlord, on which the proceedings before the commissioner were founded, does not state that Doney gave the notice mentioned in the lease that he intended to leave the premises at the expiration of the first year; and this notice was necessary to put an end to the lease at that time. There is a provision in the lease that if Doney, the tenant, should assign his lease without the consent of the landlord, then the lease should determine and be void. And the landlord, in his affidavit, does say that Doney had sold or assigned his interest in the lease and premises before the expiration of the lease; but he does not say that he sold or assigned without the lessor's consent.

The landlord, in his affidavit, therefore, does not show that the tenant's term was at an end, either by lapse of time or otherwise, nor is there enough in the affidavit to show the tenant's possession unlawful. This objection to the sufficiency of the affidavit was made before the commissioner, and overruled. The commissioner erred, therefore, in proceeding to remove the tenant, and the supreme court was right in reversing his decision.

But when the judgment of the supreme court was rendered the extended term of the lease had expired, and Doney's right of possession had ceased. That part of the judgment of the supreme court which restores him to the possession of the premises, is therefore erroneous. It was probably entered by the attorney without being so ordered by the court. It stands on the record, however, and must be reversed.

But we are of opinion that under the 48th section of the statute under which this proceeding was had, (2 R.S. 516,) the supreme court had the power of giving costs on the reversal of the judgment of the commissioner, whether they awarded restitution or not. The judgment of the supreme court ought therefore to be affirmed in all respects except as to the award of restitution. That part of it should be reversed. The judgment being reversed in part and affirmed in part, neither party should recover against the other his costs on the writ of error in this court.

Ordered accordingly.

JEWETT, Ch. J., dissented.