[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 576 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 578 The certiorari was brought to review proceedings before the county judge of Onondaga county, under the landlord and tenant act, and the only question is whether the affidavit put in by the relator contained such a denial of facts upon which the summons was issued as to entitle him to a trial before a jury as prescribed in the act. The transaction as alleged in the affidavit was a loan of $5,600, by the defendants to the relator from the 15th of May, 1876, to the 1st of April, 1877, at a usurious rate of interest, that to secure the payment of said money the relator executed to the defendants a deed of his farm, absolute in terms, and the latter executed a contract to re-sell the property to the relator, and also a lease of the premises to the 1st of April, 1877, in which it is alleged the usurious interest of $500 was contained under cover of rent, and the relator also gave to defendants a chattel mortgage on his personal property to secure the rent, and the payment of a mortgage on the real estate. The affidavit also contains a denial of each and every allegation and statement in the affidavit not specifically admitted.
The county judge refused to call a jury, and the General Term reversed the decision.
Among the numerous cases that have arisen under the landlord and tenant act, there is not one which adjudicates the point involved here.
In Roach v. Cosine (9 Wend., 228), the facts appearing were that Cosine advanced to Roach $3,900, and received an absolute conveyance with an agreement that Roach should continue in possession of a portion of the premises for two years at a nominal rent, and that if the sum advanced was paid within two years the premises should be reconveyed to *Page 579 Roach. It was held that the deed was a mortgage, and that the relation of landlord and tenant did not exist.
This case tends in the direction of permitting evidence going behind the formal character of the instruments in order to ascertain the real nature of the transaction, and if then it appears that the relation did not exist, the proceedings would not be sustained. It is to be observed however that in proving the letting, the real facts were developed, and the court merely applied the law to the facts. There seems to have been no contest as to what could be litigated in these proceedings. Here was a formal lease from a party having an absolute deed. There was no entry under the lease by the relator, but he alleges that being in possession of the premises as owner, he executed a deed to the defendants, and took from them a contract to repurchase, and a lease of the premises, which are void for usury; that all these papers were made in pursuance of a usurious agreement to borrow of the defendants a sum of money at a usurious rate of interest, and secure the payment of the same, and the usury, $500, was covered up under the name of rent, and hence he denies that he is the tenant of the defendants, or that they are his landlords. These allegations were made in the affidavit. The statute (2 R.S., 513), authorizes any tenant or lessee to be removed from leased premises, among other cases, when such person shall hold over and continue in possession after the expiration of his term. (§ 28.) The landlord or lessor must make oath in writing of the facts which according to the statute authorize the removal of the tenant. (§ 29.) Any person in possession, or claiming possession of such premises, may "file an affidavit with the magistrate who issued the same denying the facts upon which said summons was issued, or any of the facts, and the matters thus controverted may be tried by the magistrate, or by a jury." If the conventional relation of landlord and tenant does not exist, the proceedings cannot be entertained under this act, and the statute is broad enough to enable a party to prove under this denial that such relation does not *Page 580 exist. It is urged that the tenant can only prove what is admissible under a simple denial of the facts, and that usury can never be shown unless pleaded. We think that this construction is too narrow. Usury renders the lease void. It is not a lease, and there can be no tenancy by virtue of a nullity, and a denial of the lease, and the tenancy entitles the party to prove the facts which render it void. He may show that it was obtained by duress under such a denial. But there can be no objection in addition to a denial to set forth the facts, as was done in this case. It is also urged that the tenant cannot dispute the title of his landlord, but I do not think this principle applies to a case like this. A tenant cannot dispute the title of his landlord, because he cannot deny what he has once admitted, but here the instrument containing the admission is void, and is not effectual for any purpose.
The essential requisite to authorize these proceedings is that the conventional relation of landlord and tenant should exist. (Sims v. Humphrey, 4 Denio, 185; Evertson v. Sutton, 5 Wend., 281; Buck v. Binninger, 3 Barb., 391; Spraker v.Cook, 16 N.Y., 567.) Such a relation is claimed to have been founded upon an agreement. The agreement being void the relation is not established. This is not a case where the relator entered upon lands owned by the defendants. He was the owner confessedly, and by a series of instruments in form transferred the title to the defendants, and became the lessee. These instruments being void he claims in his original right as owner. Legally he occupies the same relation to the property that he always did, because nothing has been done to change it. We must assume in this case that the facts stated in the affidavit are true, and thus assuming, the transaction was usurious and void. We are of opinion that it was the duty of the county judge to have called a jury, and tried the issue presented. The defendants had a choice of officers before whom to institute proceedings, or they could have brought an action of ejectment, and litigated the questions involved in the higher *Page 581 courts. Besides they have a remedy by certiorari to review the trial before the county judge, or a justice of the peace, which brings up not only the legal questions, but the evidence, and no injustice is likely to ensue from a trial upon the merits.
We concur with the opinion of TALCOTT, J., in the court below, and the judgment must be affirmed.
All concur except RAPALLO, J., absent; ANDREWS and DANFORTH, JJ., not voting.
Judgment affirmed. *Page 582