
    Alice D. Sherman, Appellant, v. John J. Ludin, Respondent.
    
      Pleading — what complaint alleges a specific contract of rental and not mere use and occupation — a recovery cannot he had under proof of the former where the latter ■ is alleged.
    
    A complaint alleged that the “ defendant is indebted to this plaintiff for the use and occupation of - a plot of ground with the building thereon erected, situate on the west side of Greenwood Avenue, between Jamaica and Lexington avenues in the Fourth Ward of the Borough of Queens from the 1st day of March, 1903, to the 1st day of May, 1903, at the monthly rent of fourteen dollars per month, payable in advance, no part of which has been paid.”
    
      Held, that the cause of action alleged was [not for use and occupation, but was upon a specific contract of rental.
    
      Semble, that in an action brought for use and occupation, a recovery cannot be had upon a specific contract of rental.
    
      AppsAL'by the plaintiff, Alice D. Sherman, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the defendant, entered on the 9th day of March, 1903.
    
      John W. Magee, for the appellant.
    
      Burt Jay Humphrey, for the respondent.
   Per Curiam :

The plaintiff alleged in her complaint that the defendant is indebted to this plaintiff for the use and occupation of a plot of ground with the building thereon erected, situate on the west side of Greenwood Avenue, between Jamaica and Lexington avenues in the Fourth Ward of the Borough, of Queens from the 1st day of March, 1902, to the 1st day of May, 1902, at the monthly rent of fourteen dollars per month payable in advance, no part of which has been paid.” .Upon the trial the plaintiff introduced evidence to the effect that one John Donaldson, who is alleged to have acted as agent for the plaintiff, rented the premises to the defendant at a rental of fourteen dollars per month payable in advance; that the defendant vacated the premises on or about April 14,1902, and that he owed the rent at the time he vacated the premises for the months of March and April; that Donaldson- made a demand for the rent and that the tenant refused to pay more than a month and a half’s rent. With this state of facts before the court the complaint was dismissed, it being held that the allegations of the complaint, for “ use and occupation ” were controlling, and that the plaintiff should have declared upon an express contract of rental.

It seems to us that the complaint, while open to criticism, fairly alleged that the rental was by the month. Under the liberal rule of pleading now recognized by the Code of Civil Procedure it is not necessary to state a cause of action in the best possible form; it is enough if the intention of the pleader is expressed with sufficient clearness- so that he fairly apprises the adverse party of the issues to be anticipated, and it cannot be said that the defendant was surprised or misled by this pleading. The matter has been in controversy between the parties from the start; the plaintiff has insisted that two months’ rent was due, as would unquestionably be th'e case if the defendant rented by the month, and the defendant has contended that he was practically evicted from the premises by reason of the offensive cesspool upon the lot, and that he was liable only for the actual time which he occupied the premises. This was the issue between the parties, and the mere fact that the plaintiff alleges a use and occupation of the premises does not limit the scope of the action when taken in connection with the further allegations of the complaint. Clark v. Dillon (97 N. Y. 370), we think, does not conflict with this view. Of course, if the complaint merely alleged use and occupation, the plaintiff could not recover upon a specific contract of rental, but when the plaintiff adds to this language a specification covering the entire two months, and alleges that there was a monthly rent of fourteen dollars reserved, and that this amount was payable in advance, and that no part of the same has been paid, we think there is no ambiguity, although some degree of technical inconsistency, in the pleading. It is not difficult to understand that the plaintiff is seeking to recover for rentals due upon a contract, rather than for a technical use and occupation of the premises. It was shown upon the previous trial of this case that the defendant was seeking to avoid the payment, not upon the grounds now urged against the complaint, but upon the proposition that he was obliged to give up possession of the premises, which he had occupied continuously for a period of two years, owing to their unsanitary condition. (Sherman v. Ludin, 79 App. Div. 37.)

Under the circumstances the defendant is not now in a position to urge this technical defect in the pleadings with any great show of good faith, and while we cannot see our way clear to comply with the request of the plaintiff for a judgment absolute, we are clearly of opinion that the judgment dismissing the complaint should be reversed.

The judgment appealed from should be reversed, with costs, and a new trial ordered.

Goodrich, P. J., Bartlett, Hirschberg, Jerks and Hooker, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  