
    Unglish v. Marvin.
    
      (Supreme Court, General Term, Fifth Department.
    
    December 30, 1889.
    Landlord and Tenant—Tenancy prom Tear to Tear.
    A tenancy from year to year cannot be created by an oral agreement to work land on shares for a term of five years, followed by occupancy of the land under the agreement for two years.
    Appeal from judgment on report of referee.
    Action brought in Munroe county court by George C. Unglish against George W. Marvin, for unlawful removal from farming lands. Judgment for plaintiff. Defendant appealed.
    Argued before Barker, P. J., and Dwight and Macomber, JJ
    
      Hoyt & Beach, for appellant. G. E. Warner, for respondent.
   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 Van 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 occupalion of the land by the plaintiff for the period of five years was, as such, void; but that the plaintiff’s occupancy 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; and 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, 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 Rev. St. p. 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 the county court reversing, on appeal, the decision of the justice in summary procéedings 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 repeet 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.  