It would appear that the actual ground of the dismissal was the assumed inability of the justice to determine the rights of the parties without arrogating to himself equitable powers for the purpose of giving effect to a deed made by the appellant to her daughter, the respondent, Eachel Goldsmith.
This deed purported to convey the premises in question, subject to a life estate in the grantor, but, as we view the case, the conveyance was not material to the issue presented to the justice for determination.
The proceeding, if maintainable, was necessarily based upon the existence of the conventional relation of landlord and tenant. If the relation did exist, the respondents could not dispute their landlord’s title, and the deed referred to certainly did not negative the appellant’s power to receive the respondents, as tenants, *46during her lifetime, under an agreement made with a view to their becoming such.
Upon the evidence, however, we must hold that the dismissal was proper, there being no sufficient proof that the relation of landlord and tenant existed, and the accuracy of the reasoning which led to the correct result is not a substantial question upon this appeal. According to the testimony of the appellant, the arrangement between the parties was that the respondents (her daughter and the latter’s hu.sband) should make the premises their home and should take it upon themselves to board her (appellant) and make necessary repairs, this to continue during her pleasure. The respondents’ evidence was to the effect that no such agreement was ever made, that they never agreed to board the appellant, and that they had taken up their abode in the house pursuant to the appellant’s assurance that it should always be their home while they lived.
Taking the appellant’s evidence as proof of the facts, no case of tenancy was made out. In Matter of Matthews v. Matthews, 49 Hun, 346, the nature of such an arrangement as this was considered, and it was held that the promise to board the owner (a relative) was not an agreement to pay rent, or to make return for use and occupation as upon a leasing, within the reasonable intention of the parties. The further point in that case, touching the promise of a conveyance or devise as additional consideration, does not afford a ground of distinction. It is quite apparent from the reasoning employed in the opinion that the nature of the occupancy and of the duties assumed by the alleged tenants afforded the main ground for the conclusion that there was no intention to create the relation of landlord and tenant.
The final order must be affirmed, with costs.
Present: Bischoff, P. J., Leventritt and Clarke, JJ.
Pinal order affirmed, with costs.