
    George C. Unglish, App’lt, v. George W. Marvin, Resp’t.
    
    
      (Court of Appeals,
    
    
      Mled October 6, 1891.)
    
    1. Statute of frauds—Agreement to work rand on shares.
    A paroi agreement to work land on shares for more than a year is void under the statute of frauds, and occupancy thereunder will not create a tenancy from year to year.
    2. Same.
    The statute is available upon appeal, although not pleaded, under an exception to a finding that the plaintiff was entitled to recover damages for breach of the agreement, although it was void.
    3. Same—Former adjudication.
    A judgment of county court reversing judgment in summary proceedings is not conclusive on the parties in a subsequent action upon the agreement where it is not shown that the issues involved in the latter suit were litigated or adjudged in the former proceeding.
    Appeal from order of the supreme court, general term, fifth department, reversing judgment entered on the report of a referee in favor of plaintiff.
    
      John H. Chadsey, for app’lt; M. M. Waters, for resp’t.
    
      
       Affirming 28 N. Y. State Rep., 68.
    
   O’Brien, J.

The plaintiff sought, in this action, to recover damages for breach of a verbal agreement, made with the defendant, by which he agreed to occupy seven or eight acres of defendant’s farm, for five years from the spring of 1884, on the following terms and conditions: The defendant was to furnish for plaintiff’s use and occupancy the house and garden on the premises, the lower part of the barn, pasture for a horse and cow, such straw for feed and bedding as might be needed and the use of the horse in the busy season. Also to prepare so much of the ground as they might conclude to be desirable for the reception of plants and bushes, furnish one-half the sets of plants and bushes, pay one-half the cost of picking the small fruits and berries, and build a dry house. The plaintiff was to furnish half the sets of plants and bushes, plant to small fruits, various kinds of berries and currants, some seven or eight acres of the farm to be used for this purpose, to hoe and care for the berries then on the place, cultivate and care for the plants and bushes to be set out, to pick the berries and currants when ripe, market and sell them, to dry and sell those remaining, and to divide the money received on such sales, less the cost of picking, equally between himself and the defendant.

Under this agreement the plaintiff took possession of the premises March 6, 1884, and occupied them till April 22, 1886, when he was dispossessed and ejected under a warrant, issued by a justice of the peace, in summary proceedings, under the statute, instituted by the defendant. The plaintiff, after going into possession, performed various acts under the agreement and accounted for the fruit and other products sold to the defendant.

On the trial of the action before a referee the plaintiff recovered $2,153 damages on the ground that he had been deprived, by the defendant, of the use of the land for the balance of the five years, and of the fruits of the agreement.

The general term has reversed this judgment, and, as the plaintiff claims, improperly. The referee found that the paroi agreement, under which the plaintiff went into possession, was void, but that occupancy under it created a tenancy from year to year, which could only be terminated by limitation or" notice. That plaintiff’s term did not end till March 6, 1888, and that he was entitled to recover as damages the value of the remainder of the term. The agreement was not in writing and "was not to be performed within one year and hence it was void by the statute of frauds. But, notwithstanding this, the referee allowed the plaintiff to recover precisely the same as if the agreement had been in writing and was in all respects valid and binding on the parties. This result was accomplished by holding that occupancy, under the agreement, created a tenancy from year to year. We do not understand that the learned counsel for the plaintiff attempts to sustain this proposition, and it is, obviously, unsound. The relation of landlord and tenant, in any form, was not created either by the agreement itself or in consequence of any occupancy under it, Putnam v. Wise, 1 Hill, 234; Taylor v. Bradley, 39 N. Y., 129; Reynolds v. Reynolds, 48 Hun, 142; 15 N. Y. State Rep., 464. It has never been held that a tenancy from year to year can grow out of such an occupancy, though it may out of an occupancy under a void paroi lease for more than a year. Coudert v. Cohn, 118 N. Y., 309 ; 28 N. Y. State Rep., 684; Laughran v. Smith, 75 N. Y., 205 ; Reeder v. Sayre, 70 id., 180.

The counsel for the plaintiff contends that, as the statute of frauds was not pleaded and no point with respect to the said ■agreement made upon the trial, the defendant cannot raise that ■question now. That might be so, were it not for the findings of the referee that the agreement was by paroi and was void. The conclusion of law that the plaintiff was entitled to recover damages for breach of a verbal agreement held to be void, was excepted to by the defendant and this, we think, raises the question. In so far as the contract was executed between the parties, they have the right to retain what was received under it, according to its terms, but an action at law to recover damages, in consequence of a failure of either party to carry it out, cannot be maintained. Suppose the plaintiff, at the end of one or even of two years, left the farm, and refused to further perform the agreement, on what principle could the owner of the land be permitted to maintain an action against him for damages in not remaining on the farm for five years, and performing in all other respects the verbal agreement? The agreement is binding upon both parties, or not at all, and it is quite clear that it was void under the statute, and that neither party could maintain an action to recover damages for its breach against the other. The learned ■referee found that the plaintiff was ousted • from the premises by force of a warrant in summary proceedings, issued after judgment by a justice of the peace, and that this judgment was reversed lev the county court. Then he finds as a conclusion of law that .the order of the county court, reversing on the appeal the decision of the justice in summary proceedings, is conclusive on the parties. Probably what was meant by these findings was that the county court, in reversing the justice’s judgment, held that the agreement was valid, and that such decision was conclusive. That would probably be so if the record contained the facts necessary to uphold such a legal conclusion. The judgment of any court, having jurisdiction of the parties and the subject matter, to the effect that the agreement was valid and binding on them, would, though manifestly erroneous, conclude the parties on that question in any subsequent action. But the difficulty is, in this case, that the record fails to show what questions were litigated before and decided by the justice, or upon what grounds the county court reversed tlie judgment. A party relying upon a former adjudication must show that the point involved was decided in the former suit. Whatever the fact may be, we have no right to say, from the record before us, that the validity, or binding character of the verbal agreement, was adjudicated in favor of the contention of the plaintiff, either by the justice or the county court. The case does not contain the record of proceedings in either court, and there is no finding by the referee to show what was decided in the first instance, or upon what ground the reversal in the county court proceeded.

The order of the general term was right, therefore, and should be affirmed, and judgment absolute ordered for the defendant on the stipulation, with costs.

All concur, except Finch, J., absent  