
    Annie Dorschel, Respondent, v. Jacob Burkly, Appellant. Two cases.
    (Supreme Court, Appellate Term,
    October, 1896.)
    1. Summary proceedings — Claim of title. ■
    Where summary proceedings are brought for the recovery of land, the justice is not ousted of jurisdiction, because the title to land comes in question.
    2. Same.
    ' The provisions of the Code, requiring the dismissal of an action where a question of title arises, relate exclusively to civil actions, and dp not apply to summary proceedings which are especially designated in the Code as special proceedings..
    3. Landlord and tenant — Conventional relation^
    Where a life tenant leases premises, and, after his death, the guardian of the infant remainderman permits the tenant to remain in possession until the infant reaches majority, and she thereafter demands rent, the facts establish the conventional relation of landlord and tenant and enable her to maintain summary proceedings.
    
      Appeal by the tenant from final orders of the justice of the Eleventh District Court removing him from .the premises Ho. 125 Amsterdam avenue, which he claimed to hold under lease from the father of the plaintiff.
    Isaac H. Miller, for appellant.
    Louis Wendel, Jr., and Quincy, Wendel & Robeson, for respondent.
   Daly, P. J.

The tenant claimed the right to possession under leases executed by the father of the petitioner Annie Dorschel. The facts, briefly stated, are that Mr. Dorschel was tenant by the curtesy of this real estate, of which his .wife died seized, and executed a lease which had not, by its terms, expired at the time of his death, nor at the time that his daughter, who was her mother’s sole heir, became of age and elected to terminate the tenancy. After the death of the life tenant, the lessee was permitted to remain in possession, on paying rent to the guardian of the petitioner. When the petitioner attained her majority, she demanded rent, and afterward possession of the premises from the lessee, and being refused, brought these summary proceedings to remove him as holding over, first, after honpayment of rent, and next, after the expiration of his term. The question upon these appeals is whether the justice should have dismissed the proceedings upon the ground that the title to real property was involved.

There is no provision of law which requires a District Court judge, before whom summary proceedings for the recovery of land was brought, to dismiss such proceedings, where the title to real property is involved. The provision of the Code as to dismissal, where questions of title are involved, relate exclusively to civil actions. Code, §§ 2861, 2863, 2951, 2952, 2954, 3212; and so with respect to the Consolidation Act, § 1286. The word action ” is defined by section 3333 of the Code, and every .other prosecution by a party is by section 3334 denominated as special proceedings. Summary proceedings are especially designated as special proceedings. Code, § 2235; In the Matter of White, 12 Abb. N. C. 348, which was a proceeding to remove a squatter, it was held that the provision of the Code in regard to title did- not apply to summary proceedings. In such a proceeding the owner of the land is bound to prove title if it is denied, and so with regard to proceedings by adjoining owners of property used for illicit purposes; § 2237.

The cases cited by appellant do not conflict with this view. In Bowman v. Sprague, 73 Hun, 408, the only question discussed is the defense to a summary proceeding on the ground of a forcible holding out of possession; and there is no suggestion that the justice was or could be ousted of jurisdiction by the question of title which did or might arise in the proceeding. People ex rel. Vogler v. Palmer, 16 Hun, 136, was a case of holding over after title perfected under execution sale, where the statute provides that a stay .shall be granted, when an affidavit and bond are given. This provision is incorporated in the present Code, with reference to such cases. § 2254, subd. 3. And the decision and provision had nothing to do with the point under consideration on these appeals.

The justice was clearly right, therefore, in retaining jurisdiction of this proceeding, although he might have to pass upon the title . of the deceased lessor, in determining the duration of the term • which he had granted to the tenant.

In the case before us, the conventional relation of landlord and tenant was established by the permission given by the petitioner’s guardian to the tenant, after the death of his lessor, to remain in the premises until the petitioner became of age, and his implied assent thereto by payment of the rent thereafter to the guardian. Benjamin v. Benjamin, 5 N. Y. 388. Whatever was done by the guardian was done on behalf of the infant, and for her sole benefit. After she came of age she affirmed the agreement by demanding . rent, and these facts established the conventional relation of land.lord and tenant and enabled her to maintain summary proceedings. People ex rel. Hannigan v. Ingersoll, 20 Hun, 316.

The final orders should be affirmed, with costs.

McAdam and Bischoff, JJ., concur.

Final orders affirmed, with costs.  