
    PEOPLE on rel. MITCHELL a. SIMPSON.
    
      Supreme Court, First District; General Term,
    
      May, 1862.
    Summary Proceedings.—Certiorari.—Affidavit of Tenancy.
    The fact that summary proceedings for the possession of lands are conducted in a harsh and oppressive manner, and that the tenant may not have had actual notice of them, are not grounds upon which the proceedings can be reversed on certiorari.
    An affidavit to found summary proceedings for the possession of land, is not sufficient to give the magistrate jurisdiction, unless it shows the existence of the conventional relation of landlord and tenant, created by agreement or recognized by the acts of the party in possession.
    
    
      Where the affidavit showed that the plaintiff was a grantee claiming under the defendant, and that the defendant had not given up possession, and alleged that defendant became a tenant at sufferance of the plaintiff, and that said tenancy was terminated by a notice of one month ;—Held, that this was not sufficient ; for here is no tenancy, but on the contrary, it is shown that the defendant was in reality a grantor yet in possession.
    The case of People a. Ulrich (2 AJbbottP Pr., 28),—questioned.
    Certiorari to review summary proceedings under the statute, to obtain possession of lands.
    The defendant, Isabella Simpson, it appeared from the papers, was assignee of a .lease, which had at a previous time belonged to the relator, Miranda Mitchell. The relator, Mitchell, although she had assigned the lease, had not given up possession, and the defendant, Simpson, having become assignee of the term, commenced summary proceedings to obtain possession. The summons was obtained at ten o’clock, and served on some person on the premises, returnable at noon of the same day; and judgment was had by default. The contents of the affidavit upon which the proceedings are founded, are stated in the opinion.
    
      
       The following recent cases further illustrate this rule :
      Where a purchaser of real property took possession, pursuant to the contract, but afterwards made default in his payments, whereupon the vendor rescinded the sale, as by the terms of the contract he was entitled to Co,—Held, that an affidavit showing the relation of the parties, and that the purchaser refused to pay his purchase-money, and yet held over against the vendor’s will, was wholly insufficient to give the justice jurisdiction. (Supreme Ct., People a. Bigelow, 11 How. Pr., 83.)
      Where a lease was given to A., to commence on the termination of a lease of-the same premises to B.,—Held, that the former could not proceed, under the statute, to dispossess the latter for holding over. The “assigns” referred to in the statute must be such as hold the entire estate of the landlord, in the same term demised to the tenant against whom the proceeding is had. (N. Y., Com. Pl., Imbert a. Hallock, 23 How. Pr., 456.)
      An agreement to construct a wharf, to be occupied, when finished, by the grantee, at a stipulated rent, accompanied by words of present demise, operates as a lease, within the statute. (Supreme Ct., People a. Kelsey, Ante, 372.)
      Where the evidence showed that the defendants entered on the premises immediately before the expiration of the term of plaintiff’s tenant, but the tenant testified that she never gave them permission or right to dp so, and that they came in as she was moving out, claiming that the premises were theirs ;—Held, that the entry must be deemed to have been under a claim of title hostile to the plaintiff, and not under his demise; and that therefore such proceedings could not be maintained. (N. Y., Com. Pl., Carlisle a. McCall, 1 Hilt., 399.)
      But a tenant from year to year, or for one or more years, who holds over, and continues so to do for a year-, with assent of his landlord, may be deemed as holding for the year on the former terms; and may be proceeded against at the end of any year of the holding over, without previous notice to quit. (Supreme Ct., Sp. T., Park a. Castle, 19 How. Pr., 29.)
      When one of two joint lessors of land becomes sole owner of the land and rents, by a conveyance from the other, he may demand the whole rent, and upon refusal to pay, may dispossess the tenant, by proceedings in his own name. The statute directs the proceedings to be taken by the landlord, and no person but the one entitled to the possession can obtain the final order from the justice. Where the letting is joint, there can be no division of the rent, as far as the tenant is concerned. "A demand of the rent may be by either lessor, and must be of the whole rent, and not of any undivided portion. If both lessors had continued owners, it would have been necessary to have joined both as landlord, but as the interest of one had vested in the other, the former could not be so joined. (Supreme Ct., Griffin a. Clarke, 33 Barb., 48.)
      Where a mortgagor, in the presence and with the consent of his tenant, relinquished all right and title to the mortgaged premises, and put them in the actual possession and occupation of the mortgagee ;—Held, that the tenant’s term was thereby ended, and the mortgagee was in possession as such and not as lessee ; and that the mortgagor could not dispossess him for non-payment of rent. (Supreme Ct., People a. Culver, 21 How. Pr., 108.)
      Where the affidavit shows that the relation of landlord and tenant was created between the parties by a contract of hiring, if the contract of hiring is not fully stated in the affidavit, the tenant should supply the defect or make some objection to it for this reason. The objection is not available on appeal. (Supreme Ct., Norswarthy a. Bryan, 33 Barb., 153.)
      Where the affidavit stated that “the estate of L. N., deceased,” was landlord of the premises, which statement was not denied by the tenant;—Held, that the statement must be deemed to be admitted, and the court, on appeal, could not go behind it, to inquire whether “ the estate” was a corporation, or an individual, or an association of several persons, (Ib.)
      
      See, also, Deuel a. Bust (24 Barb., 438), where an affidavit was held defective for not stating the nature and term of a tenancy, so as to show that the relation of landlord and tenant existed.
      As to whether an agreement to work a farm on shares constitutes the relation within the intent of the statute, see Wright a. Mosher (16 How. Pr., 454).
      The statute is however applicable to the case of a judgment-debtor, or assigns, holding over against a purchaser upon execution sale. (Ct. of Appeals, Spraker a. Cook, 16 N. Y., 567.)
      That the landlord should bring himself clearly within the provisions of the statute, and leave nothing to be inferred. (Campbell a. Mallory, 22 How. Pr., 183 ; S. P., Miner a. Burling, 32 Barb., 540 ; and see 6 Hill, 314.)
    
   By the Court.—Ingraham, P. J.

This case is submitted to us on certiorari, to review proceedings under the statute for summary proceedings to recover possession of lands, &c. (2 Rev. Stat., 512.)

The return shows the issuing of the summons on the 29th of January, 1862, about 10 a.m., the service of the summons on • some person on the premises, whose name is not given, which was returnable at 12 m. of the same day, and judgment taken by default. Harsh and oppressive as this proceeding is in many instances, and uncertain as it is whether in this case any notice ever reached the relator before the order to expel her from the premises was granted, still, under the provisions of the statute, and the decisions which have been made thereon, the relator could have no relief on certiorari, for these causes. That there may be reason, on or about the first of May, for so short a notice, may be conceded; but that such haste is necessary, unless it be for the purposes which appear to have been in view in this case, I can see no good cause for conceding.

We are then left to inquire whether the affidavit on which the justice commenced the proceedings, was sufficient to give him jurisdiction. This affidavit, after stating that the respondent became the owner of the premises for a term of years which had, prior to her title, been assigned by the relator to one of the prior holders of the lease, and that such lease had, by various assignments, been vested in the respondent, adds, “ and that said Mitchell became a tenant at sufferance of said Isabella Simpson, and that said tenancy was terminated by a notice of one month,” &c. It contains no allegation of a tenancy, nor any facts showing how any tenancy could exist. On the contrary, the facts set out show that Mitchell could not be a tenant, but was the assignor of the lease, who, after the assignment, had not given up the possession.

This is not a compliance with the statute. It was not intended, and does not provide, for obtaining the possession of lands in any cases except those in which the relation of landlord and tenant exists, and applies to no one but a tenant. The affidavit is to show the facts which authorize the removal of the tenant, before the magistrate is authorized to proceed. Eo such fact is shown in this affidavit, and there is not even the usual statement that the relator was the tenant of the premises, but merely that she became a tenant at sufferance of the respondent. That the respondent or person making the affidavit was unwilling to make any such affidavit as the statute requires, appears from the alterations made in the original affidavit.

We have been referred to the case of People a. Ulrich (2 Abbotts’ Pr., 28), to sustain the sufficiency of this affidavit. In that case it is said that there is nothing in the statute requiring the particularity of stating the particular facts establishing the tenancy. The statute does require the affidavit to state the facts which warrant the removal of the occupant. These facts are the tenancy, the non-payment of rent, and, in case of sufferance, the notice to quit. It is quite as necessary to state the tenancy as the notice to quit, and I cannot assent to the doctrine that in these cases the landlord should not be required to show affirmatively that a tenancy does exist between him and the person in possession, before he can be removed.

But it is not necessary in this case to interfere with that decision, and being a decision of the general term it should be binding here. In the present case the affidavit does not go so far. In that case it is stated positively that McGuire was a tenant under the former owner, who conveyed to the relator. In the present case no such allegation is made, but, on the contrary, the affidavit shows that the person sought to be charged as tenant was in reality the owner, and had conveyed her title so that it had vested in the person claiming to be landlord, and adds that the respondent became entitled to the possession of the premises, and that Mitchell became the tenant at sufferance by reason of such transfers and assignments. If such a statement is sufficient to create a tenancy, it will scarcely be necessary to bring an action to get possession of land from a former owner. It appears to me, that instead of showing a tenancy, the affidavit shows that such relation does not exist. In Benjamin a. Benjamin (5 N. Y., 383), McCoun, J., says: “To entitle a party to this summary remedy, it must appear that the relation is a conventional one, created by agreement, not by mere operation of law. The relation of landlord and tenant does not necessarily exist in many cases where the legal ownership is in one person and the possession in another, although by the express compact of the parties. It can only arise where he who is in possession has, by some act or agreement, recognized the other as his lessor or landlord, and taken upon himself the character of a tenant .... If any other question than such as related to the tenancy and the holding over, is to be litigated, recourse must be had to an action instead of this proceeding.”

The decision referred to in 2 Abbotts' Pr., 28, goes quite far enough, and has opened a door to much oppression in some of these proceedings. I do not feel willing to extend it any further.

The affidavit was defective, and the proceedings must be reversed and restitution ordered.

Order accordingly. 
      
      
         Present, Ingraham, P. J., Leonard and Barnard, JJ.
     