
    (69 Hun, 88.)
    BARRY v. SMITH.
    (Supreme Court, General Term, Second Department.
    May 8, 1893.)
    Landlord and Tenant—Working Land on Shares.
    An agreement between the owner of a stone quarry and another person that the latter shall work the quarry, sell the stone, and pay one-fifth of the proceeds to the former, creates the relation of landlord and tenant. 23 N. Y. Supp. 129, affirmed.
    Appeal from Rockland county court.
    Proceeding by Emily S. Barry against Daniel T. Smith to remove him from possession of lands. Petitioner had judgment, (23 N. Y. Supp. 129,) and defendant appeals.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    John J. Mead, for appellant.
    William E. Gowdey, for respondent.
   BARNARD, P. J.

The plaintiff is the owner of a piece of land upon which there is a stone quarry. The defendant at first worked the quarry at half wages, and the product to be equally divided. This arrangement was changed into one by which the defendant should return to the owner one-fifth of the proceeds. The stones were sold by defendant, and the proceeds collected by him, and the stones belonged to the defendant, with an obligation to pay one-fifth to the landlord. The only controversy is, therefore, one of technical terms. The plaintiff and her witness say that it was mentioned that the one-fifth proceeds was for rent. The defendant says the same, except that the term “rent” was not used. The question whether the occupancy was under a technical relation of landlord and tenant was very much debated, and the decision did not entirely harmonize. The question is now set at rest by the act of the legislature. By section 2232 of the Code, occupancy on shares comes within the act for summary dispossession of tenants. Under this section such a tenancy exists as can be reached under the act to dispossess tenants who fail to pay rent, or who’ continue after their term has expired. The Code also provides that a tenancy at will may be terminated by dispossession of the tenant if he hold over after the termination of his notice to quit. The evidence is so clear that the letting was for rent, and not for a share, but' was only limited to one-fifth by way of arriving at a sum, that the question whether an occupancy on shares without a term named in the agreement can be terminated by the 30-days notice need not be decided. If it was a money rent which was received, the case was made out for dispossession, and the judgment should be affirmed, with costs. All concur.  