(dissenting):
This is an appeal from a judgment entered upon the report of a referee, granting an injunction restraining the defendant from proceeding further in certain summary proceedings instituted by him to remove the defendants from certain premises in the town of Berne, by reason of the expiration of the term of tenancy. Four acres of the premises are the same which we have considered in the case of Church v. Schoonmaker, and were held by plaintiff subject to the rents reserved in the Post lease of 1795. The other portion consists of one acre adjoining the Post parcel. This acre had originally belonged to Stephen Yan Rensselaer; had been leased by him to one Kast, and in 1842 was by deed conveyed by Kast to Yan Rensselaer. At that date Paul Settle was occupying the Post four acres as tenant of Yan Rensselaer, and it seems he went into possession of the Kast parcel as tenant, but without any written lease. The Post parcel was upon one side of a creek, and the Kast parcel on the other side directly opposite. The Post parcel had been known and used as a mill lot, and when Paul Settle went into the occupation of the Kast parcel he built a new mill- upon the Kast parcel, and the old mill went to decay or was torn down. Thereafter both parcels were used in part as a mill lot.
- The term of sixteen years mentioned in the Post lease of 1795 expired in 1811, but thereafter, without any written renewal of the lease, the Post parcel was occupied under the same terms, as to rent, until some time before 1842, when the rent was raised to sixty *263dollars. After Paul Settle went into possession of both parcels he paid rent at the rate of sixty dollars per year without any specification of the amount charged upon either parcel. In 1851, Paul Settle conveyed his interest in both parcels to Edward Settle, who continued to occupy and pay the same rent. He paid rent in full d on said lands,” as the referee finds, up to January 1, 1860. The referee finds that it does not affirmatively appear from whom Settle derived title to the Kast parcel, or by what tenure he held it.
It is apparent, however, from the facts found by the referee, that both Paul and Edward Settle held the Kast parcel under Tan Rensselaer and as his tenant, and, further, that the rent of both the Kast and Post parcels was sixty dollars per year. On the 27th of March, 1860, Edward Settle conveyed both parcels to the plaintiff by quit-claim deed, both parcels being separately described, the Post parcel being subject to the rents in the Post lease, but no mention of tenancy being made with respect to the Kast parcel.
The referee finds that on the 5th day of July, 1882, the plaintiff did not know the amount of rents reserved in the Post lease, and did not know that any rents were reserved upon the Kast parcel. The rent, on the 5th day of July, 1882, had remained unpaid from January 1,1860. Church became the grantee of the Tan Rensselaer title February 21, 1882. In May following Church agreed to take, and the plaintiff agreed to give, $1,200 “ for all arrears of rent.” The plaintiff paid Church $1,008.75 upon this agreement July 5, 1882.
Upon these facts no question of adverse title or of champerty can arise. Becker, by paying $1,008.75, upon “all arears of rent,” attorned to Church and admitted that he had held under the Tan Re'nsselaers and now held under him. The plaintiff’s quit-claim deed was not inconsistent with the tenancy, and when rent was demanded of him he agreed to pay it and did.
The referee does not find that the $1,008.75 was paid under a mistaken impression that it referred only to the Post parcel. The plaintiff testifies that when the $1,200 was agreed upon there was something said, concerning that should be all the claim against the whole place.” The plaintiff also told Church “ that he would pay his rent thereafter, there would be no more trouble.” Since he was to pay rent thereafter, it probably did not occur to him *264that it made any difference whether he paid the sixty dollars per year upon both parcels or upon one of them.
¥e ought not, in support of the judgment, to presume that the referee found a fact which the evidence will not justify. The referee has rejected, as fraudulently procured, the paper executed by the plaintiff at the time he paid the $1,008.75. This paper purported to change the tenancy from year to year to a tenancy at will. We see no reason to differ from the referee in his finding of fact in this respect.
The effect of it is to leave the tenancy from year to year existing in the same manner as if no paper had been executed. But such tenancy was not terminated by the service of the notice in May, 1883, requiring the plaintiff to quit the premises one month thereafter. Hence the summary proceedings could not be sustained. We have discussed the case on the merits, because the ease of Becker v. Church, herewith argued, requires it.
But this was an objection which could have been taken in the proceedings themselves. The invalidity of the paper purporting to change the nature of the tenancy could have there been litigated. (The People v. Howlett, 76 N. Y., 574.)
The court will not, by injunction, restrain summary proceedings unless the tenant has some equity or defense of which the county judge has no jurisdiction. (Knox v. McDonald, 25 Hun, 268; Jessurun v. Mackie, 24 id., 624; S. C., 86 N. Y., 622; Broadwell v. Holcombe, 4 Civ. Pro. Rep., 159.) Here, all the facts insisted upon by plaintiff would have been competent as evidence in support of the issue before the county judge, and if error had been committed, the remedy was by appeal. '
The judgment should be reversed, new trial granted, reference discharged, costs to abide event.
Judgment affirmed, with costs.