(dissenting). — The first objection taken before the justice, and upon which the defendants moved to dismiss the proceedings, was, that the premises not being within the district for which the justice was elected, ho had no jurisdiction. That objection was not urged on the appeal, and it may not be necessary to notice it; but it was not well taken, because the jurisdiction of the justice in these proceedings is co-extensive with *405tbe city and county of New York. Roach v. Cozine, 9 Wendell, 227.
Tbe next objection taken, and upon which a motion was also made to dismiss the proceedings, was, that there was no evidence that the defendants entered under Mrs. Markey, the plaintiff’s lessee. It is true that these proceedings cannot be entertained unless the relation of landlord and tenant exists (Evertson v. Sutton, 5 Wend. 281 ; Roach v. Cozine, 9 ibid. 227 ; Sims v. Humphrey, 4 Denio, 185 ; Benjamin v. Benjamin, 1 Selden, 387) ; but when that is once established, it attaches.to all who succeed to the possession during the demise, whether as under-tenant or as assignee. See opinion of Justice Sutherland, in Jackson v. Davis, 5 Cowen, 129, and Jackson v. Miller, 6 Wend. 233. There was no objection to the sufficiency of the affidavit on which the summons was issued, made before the justice, and the only one stated by the appellants, in the argument submitted by them, is, that the affidavit did- not aver any privity between the landlord and the appellants. It was not necessary that it should. The proceedings were not founded upon- the relation of landlord and tenant between the appellants and the respondent, but between Mrs. Markey and the respondent, which gave him the right, as suggested, to remove all persons who claimed under her. There can be no doubt about this, the statute providing for such a state of things in express terms. A tenant for any part of a year, and the assigns, under-tenant or legal representatives of such tenant, may be proceeded against and removed in the cases enumerated. 2 Rev. Stat., 4th ed., 756. The affidavit alleges that the appellants entered upon the premises under Mrs. Markey, and on information and belief that Mrs. Markey demised the same to them. The possession of the premises was not denied, although it was claimed to have been taken under title, and not under Mrs. Markey; but the respondent proved the letting to Mrs. Markey, and the possession of the appellants, by the witness Margaret Carlisle. This did not establish that they were the under-tenants of Mrs. Markey, but created a presumption of law that they were her assignees. Will*406iams v. Woodward, 2 Wend. 487-492 ; Acker v. Wetherell, 4 Hill, 116. Tbe decisions are not uniform, to tbe effect that the statute on which these proceedings are founded should be strictly construed. In Lynde v. Noble (20 Johns. 82) and in Gardner v. Keteltas (3 Hill, 332) it is said, by Justices Woodworth and Nelson, that it is a remedial act, and must be construed liberally to carry into effect the intent, by suppressing the mischief and advancing the remedy, where tenants hold over. Whatever may be the rule of construction adopted, it will not repudiate the application, to these proceedings, of the legal presumptions arising from facts proved. The relation of landlord and tenant must be shown, it is true, and cannot arise by operation of law, except in the case Mentioned in the statute; but when that is established, then the courts will favor the practical operation of the act under consideration, at least, by the application of the rules of evidence. It is also true that the presumption suggested in an action to recover rent, or upon the lease, might be rebutted by proof that the appellants were under-tenants. 2 Phil. Ev. 159 (Cowen & Hill’s Notes, ed. 1839) ; Williams v. Woodward, supra. But in these proceedings, to recover possession on the ground that the tenant holds over after the expiration of the term demised, it is wholly immaterial whether the parties in possession are under-tenants or assignees, provided they enter while the tenant is in possession of the premises. The proceeding is against the tenant, but the remedy extends to his under-tenant, assigns, legal representatives, and all persons in p>ossession of ihe premises. The first subdivision of section 32 provides that the summons shall be served on the tenant to whom it shall be directed; and subdivision two, that if such tenant be absent from his last or usual place of residence, by leaving a copy thereof at such place, with some person of mature age residing on the premises. These provisions contemplate a proceeding against the tenant, and such may be said of section 29, providing for the oath, in writing, of the facts to give jurisdiction. Section 33 prescribes the form of the warrant, and commands the person to whom it is issued to remove all persons from the premises, and to put the applicant in *407possession thereof. It is not confined to tbe persons named in it, and very properly, founded, as it is, upon tbe landlord’s right of possession, duly adjudged. If tbe persons in possession are neither under-tenants, assignees, nor legal representatives, they are not, upon a strict construction of this statute, entitled to notice of the proceedings; and if they are, their having received notice, they must abide the result of the issue between the landlord and the tenant. Going into possession under the latter is conclusive upon them in these proceedings, and that fact creates a presumption that cannot he rehutted. They hold in subordination to the relative rights and obligations of the landlord and tenant. If they have any right derived from the tenant, it must fail to avail them when the sources of their title are exhausted. If
The tenant, though he may have an interest in the premises, cannot deny his landlord’s title; and those claiming under, or who follow, or unite with him in the possession, must be subjected to the laws which govern the relation of the original parties. Suppose, for example, that “A” rented a house to “B,” and “C” hired from “B ” lodgings and apartments with board, and, when the term of “ B ” expired, refused to quit the apartments hired, although “B ” gave up the rest of the premises to the landlord. “ C ” would not be the tenant of “ B.” The relation of landlord and tenant would not exist between them (Wilson v. Martin, 1 Denio, 602), and unless presumed to be the assignee of “ B,” from possession alone, could not be removed if it be held that none but under-tenants, assigns, or legal representatives can be proceeded against, and not then successfully, if he were permitted to rebut that presumption, and to prove the incident; of his possession. Where, however, the tenant, upon tbe expiration of his term, vacates the premises, and, before the landlord resumes actual possession, a person enters, these proceedings could not be adopted against him. There would then be no relation of landlord and tenant, and no privity of contract by which he could be affected. He would be neither the under-tenant, assignee, nor legal rejeresentative of the tenant, and the landlord would be driven to his action for relief. It is true, that any person in pos*408session, or claiming possession, may, at the time appointed for showing cause, or before, file an affidavit denying the facts, or any of them, alleged in the affidavit of the landlord, whether under-tenants, assigns, legal representatives or not. It is true, also, the Supreme Court, per Justice Bronson, in Hill v. Stocking, (6 Hill, 316), and Sims v. Humphrey (4 Denio, 185), has declared that when the proceeding is not to remove the lessee, he not being in possession, the party in possession must be named, and his relation to the landlord shown. I do not understand that case to conflict with the views herein expressed. The relation of the appellants to the respondent was shown, and the summons directed to them by name. The provisions of the statute are all iiDharmony with the construction, that it is a proceeding between l*'.dlord and tenant by demise: and not one to determine vexed titles, or questions of title, and that such relation, once established, attaches during the term to all who occupy the premises, either conjointly with the tenant or by his sufferance, or enter into the possession thereof witli him during his term and possession, under claim or color of title or otherwise.
Any person in possession may, by appearing, protect himself against the allegation, either that the rent is due or the term expired. He has an interest in the possession which he may wish to maintain, and may put the landlord to the proof of the facts named, ne may also deny that the applicant is the landlord as alleged, by showing that the tenant hiréd from some other person, or deny that the person named as the tenant is in fact the tenant, and show that the premises were let to some other person. If a rule contrary to the one here presented prevails, then any person who enters during the term, not as assignee, and not as under-tenant, although by collusion with the tenant, cannot be ejected, notwithstanding that the tenant himself has abandoned or quitted the premises in deference to the landlord’s title and right. I do not believe such to be the law. Here the proof is, that the appellants entered while Mrs. Markey was in possession, and without opposition or objection from her; and it was sufficient to- entitle the respondent to possession of the premises. The motion to *409dismiss, Secondly made, was therefore properly denied, and for these reasons the offer to show title in the appellants was prop* erly excluded.
By section 471 of the Code of Procedure, the provisions of that act are excepted from any application to these proceedings, and the respondent was not obliged to submit to an examination. For the same reason, and the additional, one that he was proved to be in possession, Eichard Carlisle was also properly excluded. Whether he was in fact in possession, the whole testimony being conflicting on that subject, was a matter of fact to be decided, and he was therefore a party to the record, and could not be examined for his co-defendant or himself.
There is nothing in the objection that a proceeding, simiktr to the one under consideration, was formerly had before the justice. It was discontinued, and no judgment by the justice ever announced or made. There was no decision of the cause.
Though a suit be tried on its merits before a justice, and submitted for his decision, yet if he omit to render judgment therein, the proceeding will form no bar to a second action for the same cause. Young v. Rummell, 5 Hill, 60. There is nothing in the statute to prevent the applicant from discontinuing the proceedings at any time before a judgment. The cases cited by the appellants show that a cause being submitted, the justice has no power to enter a judgment of nonsuit. Here there was no finding of any kind, and no judgment. The plaintiff, in an action prior to the Code of Procedure, and down to the adoption of the 47th rule of the late Supreme Court in 1845, might refuse to answer when the j ury returned to the bar to render their, verdict, and be nonsuited. That rule of the Supreme Court cannot be held to apply to summary proceedings to recover the possession of land. I think the judgment should be affirmed.
Judgment reversed.