
    'In the Matter of the Application of Katharyn A. Steele, Respondent, for the Removal of Jacob Weber, Appellant, from Certain Premises.
    Fourth Department,
    January 8, 1913.
    Landlord and tenant—summary proceedings — waiver of defects in petition — oral tenancy from year to year — emblements—when tenant cannot remove crops after termination of term — rights of landlord where tenant holds over — effect of conveyance by landlord with notice to quit.
    Defects in the form of a petition in summary proceedings to remove a tenant are waived where the parties agreed to proceed to try the proceeding upon its merits.
    An oral lease of a farm not specifying the duration of the term creates a tenancy from year to year, and the tenant has no right to remove crops which mature after the termination of the lease unless there is an express agreement to that effect or the facts raise an estoppel in the tenant’s favor.
    A tenancy from year to year may be terminated at the end of any year by either the landlord or the tenant without previous notice of an intention so to do.
    Where a tenant from year to year holds over after the expiration of any particular year the landlord has the option of treating him as a wrongdoer and bringing proceedings to eject him, which may be done without notice to quit, or he may waive the right to possession and recover the rent for another year.
    Where a landlord notified a tenant having an oral lease of a farm from year to year that she had sold the premises and that thereafter he would have to deal with her grantee and the latter never recognized the tenant as such but notified him to desist from cultivating the farm and to remove therefrom, he is not entitled to. harvest crops which matured after the expiration of the lease.
    Appeal by Jacob Weber from an order of the County Court of Erie county, entered in the office of the clerk of said county on the 18th day of July, 1912, awarding to the petitioner the possession of certain premises.
    The proceeding was commenced on the 5th day of July, 1912, by the filing of a petition asking for the removal of Jacob Weber from certain premises consisting of sixty-four and one-half acres of land and a barn located about three miles from the village of Hamburg in the town of Hamburg, Erie county.
    
      The court, after hearing evidence of both' parties, granted the order awarding the possession of the premises to the petitioner, Katharyn A. Steele, upon the ground that Jacob Weber was holding the same over after the expiration of his term of tenancy thereof without the consent of the landlord, which tenancy, the court found, was one from year to year.
    
      William F. Wierling, for the appellant.
    
      Henry W. Willis and Otto W. Volger, for the respondent.
   McLennan, P. J.:

In March, 1897, Mary Gifford, then the owner of the farm in question, leased it to Jacob Weber at a rental of forty-five dollars a year, and at that time there was nothing said about how long Weber should remain or how long he could have if. The leasing was oral, and Weber continued thereafter for fifteen years to occupy the farm, the rent being increased from forty-five dollars to sixty dollars and then to seventy-five dob lars per year, and later to paying the taxes and the interest on a twelve-hundred-dollar mortgage. On January 15, 1912, Mary Gifford made, executed and delivered to Katharyn A. Steele a deed of the premises in question, and the deed was recorded on January 23, 1912. ‘On January 27, 1912, Mrs. Gifford’s husband wrote to Jacob Weber as follows:

“ Dear Sir.— We have transferred or sold our farm. So you will have to deal with new owners — we have got nothing more to say in regard to farm. Its all over.
“Tours truly.”

There were no buildings on the premises other than a barn, and during all the period of his tenancy Weber’s occupancy consisted only in working the farm in season and storing crops and tools in the bam. He lived some two miles from the farm. Mrs. Steele sent men to work the farm commencing April 10, 1912, and thereafter at various times some crops were put in by men in her employ and some hay was cut by them. Weber, however, also put in some crops in the spring and drew away the hay which had been cut, and as a result of the conflicting attempts of both parties to cultivate the farm this proceeding was brought.

The petitioner alleged as grounds for the removal of Weber from the premises, first, that he had intruded into and squatted upon the premises without permission; second, that he was holding over without permission after the termination of the tenancy of one year, and, third, that he had forcibly entered upon the premises and detained possession thereof - from the petitioner. However objectionable in form this petition may have been, the parties agreed to proceed to try the proceeding upon the merits, thereby waiving any defect in the petition. A claim was made by Weber that under the terms of his agreement with Mrs. Gifford, he would in any event be entitled to a. crop of. winter wheat which was sowed by him in the fall of 1911, and which would not mature and be ready for harvest until after March, 1912. There is nó evidence in the record to. show that Katharyn A. Steele had any notice of Weber’s alleged rights concerning this crop of wheat and Mrs. Gifford and her husband deny that permission was given to Weber to sow it with the understanding that he would be allowed to harvest it. In fact, they state that they told him if he sowed this wheat at all he did so at his own risk. Weber says that he saw Mr. Gifford sometime in August before he sowed the wheat and said to Mr. Gifford: “You folks telling about selling the farm, how about if I put in wheat and stuff ? ” to which Mr. Gifford replied: “Never mind, you sow the wheat. Improve the place. Make it look better, and you get your pay. You keep it.” It will thus be seen that according to Weber’s own version of the transaction he sowed the wheat upon the assurance of Mr. Gifford that he would get his pay and not upon any express agreement that he should have the right to remove it when it was ripe.

Weber having rented the premises in the manner above shown, without any agreement in writing, became.a tenant from year to year and there was no implied right under the law to remove Crops which matured after the termination of his tenancy; nor was any express agreement to that effect claimed, nor were facts shown sufficient to raise an estoppel in Weber’s favor. (Reeder v. Sayre, 10 N. Y. 180.)

A tenancy from year to year may be terminated at the end of any year by either the landlord or the tenant without previous notice of intention so to do. (Adams v. City of Cohoes, 127 N. Y. 175.)

The giving of the notice contained in the letter of January twenty-seventh was, therefore, immaterial, except that it served to give W eber knowledge of the fact that a change in ownership had taken place and that from thenceforth he must deal with the new owner. Where a tenant from year to year holds over, even for a few days, after the expiration of any particular year, a landlord has the option of treating the tenant as a wrongdoer and bringing proceedings to eject him and is not required before so doing to serve a tenant with any notice to quit, or the landlord may waive the right to possession and recover the rent for another year, for the reason that the tenant by remaining over has impliedly become a tenant for another year. (Adams v. City of Cohoes, supra.)

No claim is made in this case that Mrs. Steele elected to treat Weber as a tenant for another year, nor that she did anything to recognize him as a tenant after the expiration of his term, nor that she did any acts which would in any way estop her from asserting her right to immediate possession. It will be remembered that Weber did not live upon the farm, and the evidence does not disclose any facts tending to show that Mrs. Steele became aware of Weber’s claim to the right to hold the farm for another year, until the 10th day of April, 1912, or shortly thereafter, when both parties commenced to put in crops, and from that time on Mrs. Steele demanded of Weber that he desist in his attempts to cultivate the farm, and that he should remove from the farm everything that belonged to him, and served a formal notice upon him to that effect about the 29th of May, 1912.

It is claimed by Weber that in the summer of 1909 he put a new roof on the barn at a cost of about $125, and that it was verbally agreed between him and the Giffords that he should remain as a tenant on the farm until such time as he had received from the rental reimbursement for the amount paid for the roof. This was denied by the Giffords, and the court apparently found against Weber upon that proposition, and his finding was clearly sustained by evidence, for it appears that in the two years that Weber remained there thereafter he deducted nothing to apply upon the amount claimed to be due him for the roof, but, on the other hand,' paid the stipulated rental. The court apparently was convinced that as to this amount he accepted the promise of the Giffords to pay him at some time,, as concededly was the case in reference to another twenty-five dollars which he loaned to the Giffords.

If Weber has been harshly and unjustly treated by the Giffords, it is owing to carelessness upon his part in failing to obtain a lease in writing with sufficient provisions to protect him in dase of a sale Of the premises, and also as to the right to renew the lease at the expiration of any yearly term.

It follows that the order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with costs.  