The joroceedings before the justice, in this case, can not be sustained unless the conventional relation of landlord and tenant existed between the parties. The relation created by operation of'law merely will not answer. (Benjamin v. Benjamin, 5 N. Y. Rep. 383.) The books are full of cases on this question, and they are all one way, so that it is "unnecessary to cité others, to sustain the proposition.
The question then is, what was the relation created between the parties by their agreement ? Was it that of landlord and tenant, or of master and servant merely ? The parties, in their affidavits before the justice, do not differ essentially as to what the agreement was, under which the relator went into possession of the premises. They differ, only in this: the defendant, in his affidavit, alleges that the relator was to occupy so long only as he continued to work under the agree*306ment. This the relator denies, and alleges that by the agreement he was to occupy for the year without reference to his continuance in the defendant’s .service. But this difference does not affect the question, of the character of the relation created by the conventional arrangement. The defendant in his affidavit characterizes it as a demise, but that does not make it so. The agreement itself is set out in the affidavit, and both parties agree as to what it was, with the difference above mentioned. The agreement is this The defendant hired the relator to work for him one year on his farm, for the sum of $270, and was to furnish him-house room for himself and family, a garden and pasture for 'a cow. It is very clear, I think, that this is no demise of premises, in the nature of a lease, creating the relation of landlord and tenant. The relation is simply that of employer and employee, or master and servant, and the house room, garden and pasture of the cow are parts merely of the contract for service, and operate as a portion of the consideration of that agreement. Ho rent is reserved or intended, and there could be no such thing as a claim by the owner for use and occupation -while the agreement continued in force and the parties acted under it. It is simply the case of a hired man living with his employer, or upon his premises, as such. To call this a tenancy would be a confouúding of all legal distinctions. In Haywood v. Miller, (3 Hill, 90,) it was held that an agreement of this character did not create the relation of landlord and tenant, but that of master and servant'only.
It may be that the relation of landlord and tenant existed between the parties at the time the proceedings in question were instituted, and I am inclined to the opinion that such was the case. Both parties agree that the relator had then quit the defendant’s service, and refused to continue or serve longer under the agreement. Whether the defendant or relator was most in fault is of no consequence. It -is enough that the contract was broken, or put an end to, and neither party any longer acted under it. The contract for the service *307having been determined, and an end put to it in this way, the right of occupancy under it went also, and was ended. The relator, after that, was in possession not as a trespasser, but as one holding after his right of occupancy had been extinguished, and of course he became a" tenant at will or sufferance. But this relation sprung not from the conventional arrangement, but by operation of law merely, upon the failure of the conventional arrangement. The parties had put an end to the relation created by their agreement voluntarily, and the law created the new one. I put this upon the ground that both parties have treated this agreement as no longer in force, for the purpose of being performed and carried out by the relator. In this respect it differs from the case of Haywood v. Miller, supra. In that case the employer, for some alleged act of improper disobedience, had given the servant notice to leave his service and the premises, which the latter refused to do. The employer thereupon entered the house and threw the goods of the servant out. The action was trespass for throwing out the goods. The court held, that as there was no relation of landlord and tenant, trespass would not lie, but the action, if any, should have been upon the agreement for a breach. But there the agreement was still kept on foot by one of the parties, who insisted upon continuing under it. So much, upon the assumption that the relator’s version is the true one, that the occupation was to be for a year without any other condition as to time. Assuming the defendant’s version to be the correct one, that the occupancy was, by the terms of the agreement, to continue as long as the service continued, and no longer, the' same legal result would follow, precisely. In such case the holding over would be clearly .after the right of occupancy, as servant, was ended, ended by the terms Of the agreement; and the tenancy at will or sufferance would spring up by operation of law. It is of no consequence, however, whether a tenancy at will or sufferance would follow in either case, as that would not hejp the defendant’s case. It is enough *308that here was no conventional relation created by the agreement. This appears from the defendant’s affidavit, before the justice, on which the proceeding was founded. The justice therefore had no jurisdiction, and the proceedings before him, and the adjudication, and warrant, are all void, and must be reversed, with costs.
[Monroe General Term, March 5, 1866.Welles, E. Darwin Smith and Johnson, Justices.]