These proceedings were summary, to recover the possession of the premises, under the revised statues, as amended, (see 3 R.S. 863, 5th ed.) by which any tenant or lessee at will or at sufferance may be removed c when such person shall hold over and continue in possession of the demised premises, or any part thereof, after the expiration of his term, without the permission of his landlord. (§ 28.) By section 29, an oath, in writing, may be made by the landlord or other person named, "of the facts which, according to the preceding section, authorize the removal of a tenant," c. By the construction given to the statute it must appear that the relation of landlord and tenant existed by agreement, and not by mere operation of law — that the relation was conventional. (Benjamin v. Benjamin, 1 Seld. 383;Evertson v. Sutton, 5 Wend. 281; Roach v. Cosine, 9 id. 227; Sims v. Humphrey, 4 Denio, 185.) This position is not denied by the respondent, but it is claimed that *Page 57 the affidavit made by Andrew Simpson brings the case within the rule; thus the question for consideration is one of construction. What facts, fairly considered, does the affidavit establish? The affidavit is to be "of facts" which, according to the statute, authorize the removal of a tenant. The party to be removed must be a tenant or lessee, holding over and continuing in possession of the demised premises. In the present case it is claimed that there was a tenancy at sufferance, which is defined to be where a lessee enters under a lease or demise, and the term runs out and he holds over. (Woodf. Land. and Ten. 183; Com. Land. and Ten. 9.) The relation of landlord and tenant is created by a lease, or demise, to which the landlord and tenant are parties, and this constitutes the conventional relation between them. The facts stated in the affidavit from which it is claimed that such conventional relation is shown, are, briefly stated, that one Moadinger rented (leased) to Mitchell the premises for the term of ten years; that Mitchell entered as tenant, and a few days thereafter he transferred the lease to Andrew Simpson, who, a few days later, transferred the lease to Allen Hay, who transferred the lease to Isabella Simpson. These are the facts stated. It is alleged that upon the assignment of the lease by Mitchell to Andrew Simpson the latter became entitled to the possession of the premises, and that the former became the tenant of the latter by sufferance; and it is also stated that byreason of the transfers and assignments aforesaid Mitchell became the tenant at sufferance of the said Isabella Simpson. These statements are not made for the purpose of showing any agreements between the respective parties, other than the transfers of the lease, but they are simply legal conclusions of the affiant, annexed to the facts stated, and are erroneous. The transfer by a tenant of his term or lease does not establish between him and the transferee the relation of landlord and tenant, though he should remain in possession.
The affidavit contains an independent sentence, that Mitchell *Page 58 has held and occupied the premises as the tenant at sufferance of said Isabella Simpson, the landlord thereof as aforesaid, from the said 16th day of October, 1860, until the expiration of such tenancy as thereinafter mentioned. Here is no new fact stated, nor was the sentence inserted for any such purpose. It appears from a statement immediately preceding, that Andrew Simpson transferred the lease to Hay on the 16th of October, 1860, and that Hay transferred it to Isabella Simpson, but it does not appear when the last transfer was made. We thus have the statement that Mitchell has held the premises as tenant c. from the said 16th day of October, 1860, c., from which it may be inferred that Hay transferred the lease to her October 16, 1860.
The allegation of Mitchell's holding c. as tenant of Simpson, "the landlord thereof as aforesaid," is of the same character as the previous allegation that by reason of such transfers and assignments aforesaid, Mitchell became the tenant at sufferancec. of the said Simpson.
It is very clear that the facts stated in the affidavit do not show the conventional relation of landlord and tenant, but they show the contrary.
The facts stated are not sufficient to show jurisdiction in the justice, and the proceedings were properly reversed by the Supreme Court, and its judgment should be affirmed.