
    The People, ex rel. Emma Teed, vs. Mary Teed.
    The affidavit by which summary proceedings for the removal of a tenant are initiated, need not state the daté, or duration of the" lease.
    The facts stated in such affidavit, and not denied by the affidavit of the tenant, aré admitted, ■ ‘. ¡ ■ '
    "Where the facts put in issue are the ownership of the premises, and the hiring thereof to the tenant, proof of a conveyance to the landlord, and the payment "of rent to him by the tenant, establishes both of these issues against 1 ’ the1 tenant.' ' ' : • "
    If the nature-of the hiring was such that the landlord could not take the remedy by summary proceedings, the tenant must set up that defense.
    The statute requiring that upon summary proceedings an officer shall be sworn to keep" the jury, &c. "is directory in that respect; and though the return does not show that an officer was sworn, the court cannot infer that the jury = ■ were not kept by an officer, or that he was not sworn. ' . .
    It being the duty of the magistrate to swear an officer, the intendment of the law, in the absence of proof to the contrary, is that he performed his duty.
    THIS case came up upon a writ of certiorari, issued under the statutes regulating “ summary proceedings to recover the possession of land,” (2 R. 8.- 516, § 47,) -to Frederick- W. Loew, Esq. justice of the, district court for the fifth-judicial district of the city of Hew York, to review the' proceedings and judgment before him, against Emma Teedj (the -relator,) as tenant of the premises No;- 345 Third street, in the city of New York.. .• -. -• • ■.- ■ : ¡ :• ■
    , In -Obtober, 1863, Oscar-Tee5, the- husband of the-relator,1 contracted to purchase the premises in question'. He made the bargain- for the property ; employed a lawyer -to search the title, and paid ¡ for the property with his own money; Mary Teed, the respondent, had-nothing to do with the-purchase^ and .knew nothing, about it. But at the suggestion made by Oscar-Teed to his lawyer, the name of Mary -Teed, who was the mother of¡ Oscar, -was put into the deed as grantee! The deed was kept in. Oscar’s-exclusive-possession until; his death in November, 1866. After Oscar’s purchase of the house, he repaired. it with his own money to the amount of $1500. And in May, 1864, he entered into the occupation of it with his family, and continued to reside there until his death, in November, 1866. During all this period, Oscar Teed paid all the taxes on the house, and kept it insured in his own name. Mary Teed, the respondent, never acted in any way as owner of the premises, nor appeared upon the premises to make any claim as owner ■“ until five days after her son Oscar died.” i Oscar Teed died intestate, leaving him surviving his widow Emma Teed, the relator* and several children. ■ - Five days after Oscar’s death, Mary Teed, the' respondent, first appeared on the premises, demanded the deed, and said she wanted $30 a month rent for the!future.' The relator having refused to pay rent under a claim of title in the premises, an application was made on the 21st December, 1866, to Justice Leow, to remove her and her children, and under-tenant, from the premises, under the summary: proceedings act. The jury having found .in favor of the land-r lord, the relator brought a certiorari to review the proceedings before the justice. ." ■■■.' ■
    
    
      John S. Jenness, for. the relator.
    
      John Graham, for the respondent.
   Leonard, J.

The affidavit of the respondent, Mary Teed, states that she is the landlord; that Oscar Teed hired the premises, and promised to payher $22.50 per month, in ad-r vanee, for the use and occupation. That on the 1st day of December, 1866, the sum of $22.50 was due for one month’s rent of the said premises for the said month.. That Oscar is dead, leaving his wife, the said Emma, surviving; that she is his legal representative, and ■ as such is in possession'; that the rent has Been demanded of the said Emma since ¡it became due; that she has made default-; and that the said Emma* as such legal representative, tenant,-and one Leaycraft, under-tenant, hold over and.continue in possession,-without permission of ¡the landlord* after default in the payment ¡of. the-rent. •

The relator, Emma Teed, denied that Oscar Teed, as tenant, hired from the said Mary as landlord; she denied that Oscar was ever tenant, or the said Mary landlord of the premises. She denied that she was tenant of the said Mary, She denied that any agreement for hiring was ever entered into between the said Mary and herself or said Oscar. She stated that Oscar owned the premises in his life time; arid that since his death, she and the children of the said Oscar were the owners, and are in possession. 4

At the trial the title was proven to be in Mary Teed by deed to her, and also that Oscar in his life time paid her rent ; that when he paid money to Mary Teed, he said, “ there is my rent.”

It is insisted by the relator, that the affidavit of Mary Teed is defective in not stating when the hiring was made, and the duration of the lease ; and that these are facts essential to be set out, to give the justice jurisdiction'of the proceeding.

. The statute does not prescribe that the landlord shall state in the affidavit the date or duration of the lease. The facts constituting a tenancy are stated—ownership and hiring— the rent due, when it became payable, and for what period, are also stated. The facts put in evidence are the ownership and the hiring. The conveyance to Mary Teed, and the payment of rent by Oscar Teed, established both of these issues against the relator. If the nature of the hiring was such that the landlord could not take the remedy by summary proceedings, the tenant must set up that defense,

The same question was raised in Norsworthy v. Bryan, (33 Barb. 153.) It was there insisted that the landlord should state the nature or duration of the tenancy. It was held that if the contract be not fully stated,'the tenant should 'have supplied the defect, (p. 155.) The lease does not appear to be in writing. It continued till the following May, presumptively, in case the rent was punctually paid. (1 B. 8.741,•§ 1.) .The facts stated in the affidavit of the landlord, and not denied by the affidavit of the tenant, are admitted.

[New York General Term,

April 1, 1867.

It is also objected that the return shows that the jury retired to deliberate upon their verdict, but does not show that an officer was sworn to keep the jury, &c.

The statute is directory in this respect. We cannot infer that the jury were not kept by an officer, or that he was not sworn. The relator might have procured a further return, if the' magistrate did, in fact, neglect the performance of his duty, and the relator had desired to make it appear. It was the duty of the magistrate to swear an officer, and it is the intendment, in the absence of proof to the contrary, that he performed his duty. (Hatch v. Mann, 9 Wend. 262.)

The judgment and proceedings should be affirmed, with costs.

Ingraham, J. concurred.

Sutherland, J.

There can be no doubt that in a summary proceeding to .recover the possession of premises, under the statute, the affidavit must show the tenant or lessee to be one at will or sufferance, or for a part of'a year, or for one or more years. (See § 28, of statute.) And I dissent from so much of the within opinion as states or. intimates to the contrary ; but I concur in affirming the proceedings, on the ground of the local law. (3 JR. S. 5th ed. 34, § 1.)

Judgment and proceedings affirmed.

Ingraham, Leonard and Sutherland, Justices.]  