
    George C. Unglish, Resp’t, v. George W. Marvin, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1889.)
    
    1. Statute of frauds—Agreement to work land on shares.
    An agreement to work land on shares is only a contract for work, labor and services, and such contract for more than a year, not being in writing, is good only for a year. Occupation under such a contract for two years will not create a tenancy from year to year to the end of the term named.
    2. Res adjudicata.
    A judgment of county court reversing judgment in summary proceedings will not be held binding on the parties in a subsequent action for damages for the unlawful removal where it is not made to appear that the issues in the action were litigated or adjudged in the former proceeding.
    Appeal from a judgment entered on the report of a referee.
    
      Hoyt & Beach, for app’lt; Q. B. Warner, for resp’t.
   Dwight, J.

The action was for damages for the unlawful removal of the plaintiff from the possession of premises, consisting of farming lands, in the town of Yan Burén, in Onondaga county. The plaintiff claims the possession under an oral agreement with the defendant to work the lands on shares for the period of five years from the 1st of April, 1884. The plaintiff was dispossessed at the end of two years, under a judgment of a justice of the peace in summary proceedings, which judgment was afterwards reversed on appeal to the county court of Onondaga county. The two judgments are made to appear only by the pleadings in this action, and it is not shown, either by the pleadings or by evidence, what questions were litigated before the justice, or what was the ground of reversal by the county court.

The referee took evidence of the probable amount and value of the products of the land during the remaining three years of the five covered by the agreement, as a basis for estimating “ the value of the remainder of the plaintiff’s term; ” and after finding the facts, found, as conclusions of law, in substance, that the oral agreement for the occupation of the land by the plaintiff for the period of five years was, as such, void; but that the plaintiff’s oc? cupancy for a portion of the term created a tenancy, from year to year, which could be terminated only by limitation, or by the notice prescribed by law; that the judgment of the county court above mentioned was conclusive on the parties, ana that the plaintiff was entitled to recover the value of the remainder of his term.

The radical error which vitiates the judgment entered on these findings, is in the conclusion of law that the occupation of the land for two years under the oral agreement to work the same on shares for five years created a tenancy from year to year, to the end of the term named in the void agreement. It is well settled that an agreement to work land on shares creates no tenancy at all. Reynolds v. Reynolds, 48 Hun, 142; 15 N. Y. State Rep., 464, and the cases cited. Such an agreement is only in the nature of a contract for the hire of work, labor and services, to be paid for by a share of the product of the labor; and such contract for more than one year, not being in writing as an executory contract, is good only for .one year. 2 R. S., 135, § 2.

So far as the contract between the parties was executed, the plaintiff acquired the rights of a tenant in common of the crops and products of the land raised during his occupancy, Reynolds v. Reynolds, supra, and for these rights, if denied or infringed, he had his action; but he could have no action upon the contract as an executory one.

The conclusion of law of the referee that “the order of tin? county court, reversing, on appeal, the decision of the justice in summary proceedings, is conclusive on the parties hereto,’’ though correct in terms, is entirely immaterial as a finding in this case. That judgment, or order, was binding upon the parties in the proceeding in which it was made, but it is not binding upon them in respect to any of the issues in this action, because it does not appear that any issue in this action was litigated before the justice or adjudged in the county court.

It is impossible upon the record before us to sustain the judgment in this action.

. Judgment reversed and new trial granted before another referee, with costs to abide the event.

Barker, P. J., and Macomber, J., concur.  