It is well settled that to authorize these summary proceedings the conventional relation of landlord and tenant must bo shown to exist, and not a tenancy created by mere operation of law. (Benjamin v. Benjamin, 5 N. Y., 383 ; The People ex rel. Williams v. Bigelow, 11 How. Pr., 83 ; Roach v. Cosine, 9 Wend., 227 ; Sims v. Humphrey, 4 Den., 185.) This conventional relation may be created by agreement, express or implied. (See opinion of Selden, J., in The People v. Simpson, 28 N. Y., 59.) Care must be taken to distinguish between a tenancy created by operation of law and an agreement implied by law from particular facts.
In the present case, the infant Davis was vested with tho title to the land. The rents belonged to him, and whatever the guardian did was for his benefit. (Porter v. Bleiler, 17 Barb., 153.) He could maintain an action for use and occupation, although he had a general guardian. (Id.)
Undoubtedly the guardian had authority to rent during the infant’s minority, but no longer. Whelan rented the premises to Hannigan for one year from tho 1st day of May, 1878. Davis attained his majority on the 4th of December, 1878.
It seems, however, that Davis thereafter ratified Whelan’s act, for he took ho step in disaffirmance, permitted continued occupation and must have demanded the rent. Wo infer the latter from the fact that Whelan directed the tenant not to pay.
Be that as it may, Davis, as landlord, could have maintained an action on the lease for the rent accruing subsequent to his majority. The suit would of itself be an affirmance. In Pond v. Curtiss (7 Wend., 46), an action in the guardian’s name, even after the ward had attained his majority, was sustained. This was under the rules governing sealed instruments, and upon the further ground, that there was nothing m the case to show that the suit was not actually brought by the ward in the name of his guardian, who executed the lease. There was not a suggestion that the ward could not have maintained the action in his own name. On the contrary, SUTHERLAND, J., observed that “ where the suit is brought ” in the guardian’s name, “ with the approbation of the ward and for his benefit, it is a question of form rather *319than of substance ; ” aud again, “ I perceive no objection, in principle, to allowing the toard, in a case like this, to enforce the covenant made for bis benefit, in tbe name of his guardian. It is to be intended that the suit is brought for the benefit of the ward, and with his approbation, until the contrary is shown.”
The guardian has no interest in the lands and nothing but a naked authority. His control is limited to the rents aud profits, and that entirely ceases at the ward’s majority.
Here the occupation by the tenant, with Davis’ approbation, after the latter’s majority, constituted between them the conventional relation of landlord and tenant. It was not a tenancy created by operation of law, but by and under the express agreement of May 1st, 1878.
That agreement was made on behalf of Davis and for his sole benefit. During his minority, the guardian was authorized to reduce the rent to possession. Thereafter, the ward was entitled to receive it directly and to so receive it under the original agreement. The operation of the law is not upon the creation of the tenancy, but upon the right to proceed directly under the agreement. Mary Begen as the assignee of Davis was authorized to institute summary proceedings.
There being nothing in any of the other points, the proceedings and judgment of the justice must be affirmed, with costs.
Davis, P. J., concurred. Present — Davis, P. J., and Barrett, J.Proceedings and judgment affirmed.