#### Joseph Burkhart, Landlord, *v.*Nelson Tucker et al., Tenants.

(County Court, Lewis County,

June, 1899.)

Summary proceedings — Hot applicable to vendor and. vendee under an agreement to sell real estate.

The conventional relation of landlord and tenant does not exist between the parties to an agreement for the sale and purchase of real estate, and hence where the vendees hold over, after default, an assignee of the vendor cannot dispossess them by summary proceedings taken under the Code' of Civil Procedure but must either bring ejectment or foreclose the contract.

Summary proceedings before the county judge of Lewis county.

C. S. Mereness, for petitioner.

J. D. Smith, for defendants, Tucker.

Turner, J.

December 19, 1894, Sarah McCullock, as party of the first part, and Kelson Tucker and wife as parties of the second part, entered into and duly executed a contract in writing for the sale by party of the first part to, and the purchase by parties of the second part, certain real estate situate in. the town of Greig, Lewis county, for the sum of $500, payable in installments, with interest, the last payment being due and payable May 1, 1897.

Subsequent to the date of the contract, the vendor died, and the executor under her last will and testament sold, assigned and.trans*725ferred the contract to A-. M. Lanpher, and March 2, 1899, Lanpher dply sold, assigned and transferred it to the petitioner, Burkhart.

Tucker and wife are in default, having failed to make payments of the purchase money as specified and required in the contract, and have been in default since May 1, 1897.

.The contract in question contains this provision: “And if said parties of the second part shall fail to perform this contract, or any part of the same, said party of the first part shall, immediately after such a failure, have the right to declare the same void, and retain whatever may have been paid on such contract, and all improvements that may have been made on said premises, and may consider and treat the parties of the second part as her tenants holding over without permission, and may take immediate possession of the premises and remove the parties of the second part therefrom.”

The petitioner, in his petition for process to remove the Tuckers, alleges that about March 17, 1899, there was due and unpaid upon said contract the sum of $411, and that on or about that day he tendered the vendees a deed of the premises, and demanded the sum .due on the contract, which they failed to pay, and that he thereupon elected to declare -said contract void, and demanded of the vendees possession of the premises, which they refused to surrender, and still refuse to surrender, and that they are holding over without the consent of the petitioner.

Upon these facts he asks for process to remove the vendees as tenants holding over without permission of the landlord, pursuant to the provisions of the Code of Civil Procedure entitled “ Summary proceedings to recover possession of real property.” § 2231.

The sections of this title of the Code of Civil Procedure are substantially re-enactments of the provisions of the Revised Statutes upon this subject, and in no .respect change the well-settled rule that the statute applies only where the conventional relation of landlord and tenant exists between the parties, and unless this relation exists by agreement, and not by operation of law, the magistrate has no jurisdiction in such cases. Roach v. Cosine, 9 Wend. 227; Sims v. Humphrey, 4 Den. 185; People ex rel. Hubbard v. Annis, 45 Barb. 304; Benjamin v. Benjamin, 5 N. Y. 383; People ex rel. Ainslee v. Howlett, 76 N. Y. 574; People ex rel Williams v. Bigelow, 11 How. Pr. 83.

We find the Tuckers in possession under a contract of sale, and although they were in default in May, 1897, the vendor, or her *726assignees, waited until nearly two years had elapsed beforé taking any steps to declare the contract at an end.

If the assignee of the vendor could, in law, declare the contract void, because of the failure of the vendees to comply with its. terms and conditions, and thus create the relation of landlord and tenant, could it be done by parol, or was notice in writing essential, and if he could and did do so, when did the tenancy begin? If it began when he elected to declare the contract void, and demanded possession, it then became a tenancy at will or at sufferance,- because there had been no such termination of the tenancy or holding over as the statute contemplates. § 2331, Code Oiv. Pro., subd. 1-2.

A tenancy at will may be created by express words, or it'may arise by implication of law. Oowen’s. Treatise, § 1761, 6th ed.

If the petitioner be correct in his contention that the relation of landlord and tenant commenced when he declared the contract void, and demanded possession of the premises, he could only bring- himself'within the. statute, or institute this proceeding at the expiration of the month’s notice to his tenants to vacate and surrender such possession (§ 2236, Code Oiv. Pro.) for the provisions of the Revised Statutes in reference to terminating a tenancy at will or by sufferance are still in force.

Rothing appears in the petition herein showing, or tending to show, that such notice was given or served upon either of the Tuckers, hence this proceeding is prematurely instituted,.if his com -tention be well predicated that the relation of landlord and tenant was established when he declared the contract void, and demanded possession.

It has been well said that these proceedings must conform strictly to the demands of the statute, and that the petition must make out a plain case, and must show the relation of landlord and tenant, existing by agreement and not by mere operation of law. 5 N. Y. 383; 40 N. Y. 105; 28 N. Y. 55; 24 Barb. 438; 6 Hill, 314.

It has been held that the conventional relation, of landlord and tenant does not exist in the case of a contract of sale of real estate, where the purchaser makes default in payment, and having possession, holds over after notice and demand, but that the relation must be established by a lease or demise of' the property. Sloane Land. *&*Ten. 149; People ex rel. Williams v. Bigelow, 11 How. Pr. 84; Kenada v. Gardner, 3 Barb. 589; Dolittle v. Eddy, 7 id. 74; Burnett v. Scribner, 16 id. 621; Livingston v. Tanner, 14 N. Y. 64; Oakley v. Schoonmaker, 15 Wend. 226.

*727It seems to me that under the contract in question, the petitioner must resort to an action in ejectment or .a foreclosure of the contract, in order to oust the vendees^ 3 Barb. 576.

Motion to dismiss the proceedings is granted, but without costs. •

Motion granted, .without coste.