
    The Queen City Bank, Respondent, v. William Hood et al., Appellants.
    (Superior Court of Buffalo — General Term,
    December, 1895.)
    1. Summary proceedings —Evidence.
    In summary proceedings for nonpayment of rent, evidence tending to show that a deed given by defendant to plaintiff was in fact a mortgage, and that certain payments were made upon the indebtedness secured thereby, is admissible.
    2. Same.
    Where the question at issue in such proceeding is as to the existence of the relation of landlord and tenant, any competent evidence tending to establish or controvert that fact should be admitted.
    Appeal by the defendants from a' judgment of the Municipal Court of Buffalo, rendered and entered in favor of the above-named respondent and against the above-named appellants in summary proceedings for the removal of said appellants from certain premises in the city of Buffalo.
    
      W. J. Shields (C. R. & C. U. Carruth, of counsel), for appellants.
    
      Daniel McNaughton, for respondent.
   White, J.

The petition which was issued in this proceeding alleges, in substance, that the respondent is the owner in fee and entitled to the possession of the premises in question; that about November 14, 1894, it let and rented said premises to the defendants for the term of five months from December 1, 1894, to May 1, 1895, at the monthly rent of twenty-five dollars in advance, default, of the payment of the rent, and that the appellants hold over, etc., without permission.

The answer denies that the respondent owned the premises, as alleged in the petition, or that it ever let or rented the premises to the appellants. •

The meritorious question on this appeal is whether or not evidence offered by the appellants to prove that a certain deed given by them to the respondent was.in fact a mortgage, and that certain moneys paid by them to the respondent after the giving of the deed were in fact payments oil the indebtedness' secured by such mortgage, and that the relation of landlord and tenant did not exist between the parties, should have been ' received.

The appellants offered evidence tending to prove, among, other things, that the appellants, being indebted to the respondent; transferred to it the title toxthe premises in question by a deed which was in fact a mortgage'; that the appellants undertook to pay twenty-five dollars a month on that indebtedness, and that no agreement had ever been made by them to talcó from the respondent a lease of the premises:- In fine, that the relation of landlord and tenant did not exist between the' parties. While' it is true, as the respondent , contends, that if the deed were in fact a mortgage the relation of landlord and tenant might well be created and exist by virtue-of an agreement between the .parties -to that effect, and that-there was evidence in the case- tending' to establish that as the fact, yet the exclusion of other compétent evidence offered on the.part of the appellants upon the same subject, in my judgject, constitutes reversible error in the casé at bar.

The .vital question, tried "was whether or not the relation of landlord and tenant existed, and all competent evidence tend- ' ing. to- establish or controvert that fact should have been ' admitted.

A few of a large number' of what seem*to me to have been erroneous rulings oh the admission and rejection of evidence .upon this question appear- in the return, as- follow.The witness Inglehart, for the.respondent, had testified to leasing the premises to the appellants, and that he transacted the business of the respondent with the appellants out of which" resulted the proceedings to' remove them. On his cross-examination he was asked if he had a conversation in relation' to the premises with one of the appellants at the time -the deéd. which they claimed was in fact a mortgage was given; he. was also required to give the conversation; he was also asked if'in fact the deed was not taken as and - intended to be a mortgage; also if, when the' deed was given, the appellants' were not indebted to the bank; also if there was not an agreement that the appellants should pay the twenty-five dollars on the indebtedness secured by the deed, and not as rent; This' .evidence was excluded by the court.

I think the rulings upon these points were clearly erroneous, and that the order appealed from should be reversed, with costs..

Titus, Ch. J., and Hatch, J., concur.

Order reversed, with costs.  