There are cases in other jurisdictions which though not directly in point lend general support to our ruling. Lovett v. Bell, 30 Cal.2d 8, 180 P.2d 335; Durfey v. Kukresh, ___ Misc ___, 80 N.Y.S.2d 246; Syracuse Savings Bank v. D'Elia, 185 Misc. 928, 56 N.Y.S.2d 800; Joandor Realty Corporation v. Zion, 184 Misc. 595, 54 N.Y.S.2d 745; Farrow v. Martin, Mun.Ct., 195 N YS. 244; Bracken v. Hahn, Sup., 194 N.Y.S. 82. But see Morgenroth v. Emert, 118 Misc. 260, 193 N.Y.S. 305; Bavendam v. Levinson, 116 Misc. 135, 189 N.Y.S. 687. Reversed for further proceedings in accordance with this opinion.
While at common law a lease of a combined store and dwelling was not divisible, the weight of authority is that the contrary is the rule under the recent rent laws. Rockaway Point Co., Inc., v. Friberg, 198 A.D. 923; Bavendam v. Levinson, 116 Misc. 135, 137-140; Kornbluth v. Brand, 117 id. 298; Bard v. Fried, N.Y.L.J. July 2, 1921. Final order reversed, with thirty dollars costs, and final order directed awarding to the landlord possession of the store, with costs.
The relationship of landlord and tenant is always created by contract, express or implied. (35 C.J. 951, 952; Stern v. Equitable Trust Co., 238 N.Y. 267; Beach v. Nixon, 9 id. 35; Bavendam v. Levinson, 116 Misc. 135; many other authorities.) There exists here no evidence of any express agreement between the city and the plaintiff out of which the relationship of landlord and tenant might arise, nor is there evidence establishing an implied agreement outside of the fact that the city through its welfare department made some monthly payment or contribution.