¶1There is nothing in the case from which to determine the character of defendant’s tenancy, from year to year or from month to month, but the bare facts that his-holding was at first under-a written lease for one year from August 15, 1888, rent payable-monthly, and that after the end of that term he remained in possession, paying the rent monthly as before.
¶2Where a tenant thus holds over, the landlord may elect to treat him as a tenant at sufferance, or a tenant from year.to year or from month to month, according to the character of his prior tenancy. Acceptance of rent according to the terms of the prior tenancy, if' there be nothing to prevent that effect, terminates the right to elect. The law as to these points is so well settled tha,t citation of authorities is unnecessary.
¶3Undoubtedly it is open to either party to show an agreement or understanding between the parties that the holding over shall not have the effect to continue or renew the tenancy; but the conversation on which the appellant relies for that purpose does not tend to prove-it, for it did not relate to a holding over. The mere fact that, before the original term expired, appellant told respondent that he did not want the premises for another year, could in no way change the ■effect of his continuing in possession after the term expired.
¶4*526Gen. St. 1878, c. 75, § 40, applies only to the notice required tp terminate a tenancy at will, and has no application to a tenancy from year to year.
¶5Order affirmed.
¶6Note. A motion for a reargument of this ease was denied December 24, 1890.