The record of the former adjudication does not show, nor is it proved aliunde, that any other issue was determined than that the appellants were not, when that proceeding was commenced, holding the possession of the premises after the expiration of their term as tenants. To that extent only is the record a conclusive bar in this proceeding. The petitioner, therefore, was at liberty to show, in this proceeding, that the conventional relation of landlord and tenant had existed between the parties, and that the appellants, when this proceeding was commenced, were holding over after the expiration of their term of tenancy.
B ut we think the findings of the county judge, as well as the evidence, show that the conventional relation of landlord and tenant did not exist between the parties. This conventional relation means the relation created by the convention or agreement of the parties. Benjamin v. Benjamin, 5 N. Y. 383. The cases are numerous in which this summary remedy has been refused because the contract or circumstances under which the owner of premises permitted another to take possession of them contemplated some condition or consideration apart from rent, or a tenancy at the mere sufferance or will of the owner. Dolittle v. Eddy, 7 Barb. 74; People v. Annis, 45 Barb. 304; Haywood v. Miller, 3 Hill, 90; Russell v. Russell, 32 How. 400; Williams v. Bigelow, 11 How. 83; Sims v. Humphrey, 4 Denio, 185. Here the petitioner wanted the appellants to come and occupy his house and premises, and allow him to board and live with them. He was getting old and had no kinsfolk about him, and he solicited his nephew and wife, these appellants, to leave their home in St. Lawrence county, and come and allow him to live and board with them upon these premises in Clinton county. In addition to other *123privileges extended, he held out to them the inducement that he would at some time will to them the premises. He promised that, at some future day after they had taken possession, he would execute the necessary papers. The appellants accepted his proposition, acted upon it, and boarded him from December until the next summer, when he left them, without fault shown on their part, and, so far as he was able, he attempted to withdraw from his agreement. Whatever else may be said of such an agreement, it is plain that it is not one of leasing premises. It is rather one to provide the petitioner with board and the comforts of a home with his kindred. Ho such thing as rent was spoken of, nor was it within the intention of the parties. The tenure of these appellants, so far as it was defined at all, seemed to be one which would by and by ripen into a fee.
It is true that the county judge holds that the inducement held out by the petitioner that he would some time will them the property had no effect in inducing them to come. The learned county judge has here lapsed, through an inadvertence unusual with him, into a repugnancy in terms. The inducement is found; it is clearly established by the evidence. It is obvious that it was regarded as one of the most important benefits to be secured by the agreement. It cannot be nullified by the finding that the inducement, which was acted upon, did not induce. It is not needful that we should undertake to define the precise rights and duties of the parties. The remedy here sought is given by statute for the special case of landlord and tenant. The petitioner has mistaken his remedy, if he has any.
The order should be reversed, with costs, as in a special proceeding. The Code, § 2263, provides that, upon reversal, the court may award restitution; also that the party dispossessed may maintain an action for damages. We think, under the circumstances, we ought to leave the appellants to their action for damages.
Learned, P. J., and Ingalls, J., concur.