
    COIT against PLANER.
    
      New York Superior Court; General Term,
    
    
      May, 1868.
    Action fob Use and Occupation.—Complaint.
    What averments in a complaint are sufficient to show a cause of action for use and occupation.
    It is a sound principle that the action for use and occupation is founded upon contract, and lies only when the relation of landlord and tenant exists.
    But a contract, in order to sustain the action need not be express; it may be implied from circumstances,—e. g., from the facts that the plaintiff notified the defendant he would charge defendant a certain rent for the premises, and the defendant, under such notice, entered upon, and used them.
    Possession of leased premises, the property of the plaintiff, in an action for use and occupation, is sufficient evidence of an assignment of them -by the original lessee to the defendant, to enable the owner to recover against the defendant directly.
    Appeal from a judgment at special term.
    The complaint in this action set forth that on September 10,1864, Louis Planer and Joseph Kayser were the tenants, and in possession of certain premises in the city of New York, belonging to the plaintiffs, known as Nos. 85, 87, and 89 Elizabetk-street, and on that day agreed with plaintiff, that if he would erect and build an additional story on a certain building on said premises, for their use and occupation, they (Planer and Kayser), would pay the plaintiff an annual rent of 8150 therefor, payable quarterly in advance ;—that the plaintiff did erect said additional story, and Planer and Kayser entered into possession thereof, on or about the first day of January, 1864, and have paid the plaintiff for the rent, use, and occupation thereof, up to February 1, 1866, but refused and declined to enter into any written agreement with the plaintiff for the letting or hiring of said additional story. That some time during the quarter ending on February 1, 1866, Planer and Kayser assigned and transferred to the defendants, Planer, Bramsdorf & Vail, all their right, title, and interest, in the said premises, 85, 87 and 89 Elizabeth-street, including the additional story above mentioned, and defendants entered into, and ever since have been, and now are in the full use and occupation and enjoyment thereof; and that $75 is a fair and reasonable rent and sum for the use and occupation of said additional story for three months, ending May 1, 1866. The plaintiff further stated that he notified the defendants that if they used and occupied the additional story the rent of the same for the year commencing on May 1, 1866, would be $400, payable quarterly in advance; which rent plaintiff averred is a fair and reasonable rent and sum for the occupation of the additional story; that said defendants have not paid the sum of $75 nor $400, or any part thereof. The complaint therefore demanded judgment for 8475 and costs.
    The defendants in their answer denied that some time during the quarter ending February 1, 1866, referred to in the complaint, or at any other time, Planer and Kayser assigned or transferred to the defendants all their right, title, and interest in said premises.
    The cause was tried before Justice Babboub, without a jury. Upon the trial, without evidence upon either side, the defendants moved the court to discharge the complaint, upon the ground that it did not state facts sufficient to constitute a course of action ; which motion was denied, and the defendants excepted. The plaintiffs then moved the court for judgment on the pleadings. The court granted the motion, and granted judgment for the plaintiff ; and the defendants excepted. Judgment was entered accordingly; from which the defendants appealed.
    
      A. C. Morris, for the appellants.
    I. The court erred in rendering judgment in favor of the plaintiff upon the pleadings. The only possible claim the plaintiffs show against the defendants is as assignees of Planer and Kayser. The complaint alleges a hiring by the plaintiffs to Planer and Kayser at the annual rent of $150, and that some time" during the quarter ending February 1, 1866, Planer and Kayser “ assigned and transferred to the above named defendants all their right, title and interest in the said premises, 85, 87 and 89 Elizabeth-street, including the said additional story above named, and. said defendants entered into and ever since have been.and now are in the full use, enjoyment and occupation thereof.''' This averment, is substantially that the defendants entered into the use and occupation of the premises as the assignees of Planer and Kayser. And the averment is fully denied by the answer.
    II. The learned judge who presided at the trial held that the words of the complaint “ that the defendants entered into, and ever since have been, and now are in the full use, enjoyment, and occupation thereof were to be regarded as a distinct allegation, independent of and not qualified by what precedes them, and that as the pleadings admitted this occupation, &c., the plaintiff was entitied to judgment. " But even under this construction, the ruling of the judge was erroneous ; for the simple reason that to authorize an action for use and occupation, the -conventional relation of landlord' and tenant must exist between the parties. Of this there is no pretense, in the present complaint, except so far as is to be deduced from the hiring to Planer and Kayser, and the transfer of their interest to the defendants (Sylvester v. Ralston, 31 Barb., 286; Croswell v. Cram, 7 Id., 192; Osgood v. Dewey, 13 Johns., 240; Hall v. Southmayd, 15 Barb., 36; Tayl. Landl. & T.,§ 636).
    
      Alfred Roe, for the respondents.
    I. The pleadings admit the ownership by plaintiff of the premises described in the complaint; that the defendants entered into, used and occupied the same ; and the value of such use and occupation. This is sufficient to entitle the plaintiff to recover (Tayl. Landl. & T., 461, 466,.476; Osgood v. Dewey, 13 Johns., 240; Peckham v. Leary, 6 Duer, 494; Bedford v. Terhune, 30 N. Y., 453).
    II. As to the last year of the term sued for—the relation of landlord and tenant did actually exist by express contract. Notice was given to the defendants of what the rent would be, and by retaining possession and using and occupying the premises, after such notice, they became tenants of the owner, the plaintiff (Tayl. Landl. & T, 463; Peckham v. Leary, 6 Duer, 494 ; Despard v. Walbridge, 15 N. Y, 374).
   By the Court.—Garvin, J.

This action is brought to recover a reasonable compensation for the use and occupation of an additional story used by defendants, from February 1, 1866, up to and including May 1, 1867.

The complaint alleges plaintiffs’ ownership ; notice to "the defendants that if they used the premises he would charge them $400 per year therefor ; that the defendants entered into possession; use and occupation by defendants for fifteen months; that the amount claimed is a reasonable sum; and that, during the quarter preceding May 1, 1866, the said Planer and Kayser assigned and transferred to the defendants all their right, title, and interest in the premises in Elizabeth-street; that Planer and Kayser refused to.enter into any written agreement for the letting or hiring of the additional story ; and that the rent-is still unpaid.

All these allegations except the assignment are admitted, for want of any denial in the answer.

That such a complaint contains facts stifficient to constitute a cause of action for use and occupation for the. one year, will hardly be denied. In the absence of any-written or verbal agreement for the duration of their term,. Planer & Kayser were only tenants of the additional story from year to year; and their term expired May 1, 1866 (1 Rev. Stat., 744, § 1); thus showing a clear cause of action against the defendants for use and occupation of the premises for the year beginning in May, 1866. After that date, the defendants could not have been under-tenants of Planer and Kayser— their term expired before the defendants’ commenced. If not under-tenants, the defendants are. liable to the plaintiffs as owners (Wood v. Wilcox, 1 Den., 38 ; 7 Hill, 88 : 1 Rev. Stat,, 748,' § 26). The use and occupation of the premises would imply a promise to pay what they were reasonably worth; or, in other words, a reasonable compensation.

But it is objected that an action on the case for use and occupation is founded upon contract, and lies only when the relation of landlord and tenant exists. This is a sound principle, and rests not only upon authority but upon the statute. Such contract need not, however, be express — it may be implied from circumstances (Despard v. Walbridge, 15 N. Y., 374; 13 Johns., 297, 240 ; 1 Wend., 134; 17 Barb., 149).

It is admitted that the defendants went into possession, occupied and enjoyed the use of the premises for fifteen month. They were notified what the rent would be if they used the premises. They deprived the plaintiffs of the use and occupation of them, and took the benefit and had the advantage. Upon these facts we are bound to infer an agreement, and promise to pay a reasonable compensation. The promise or contract having been made out, the relation of landlord and tenant follows.

This disposes of the defense to plaintiffs’ claim for the year preceding May 1, 1866, but leaves the question of compensation for the last quarter preceding that period undisposed of. It is averred that there was an assignment and transfer to the defendants of all the interest of Planer and Kayser to the additional story; that it was occupied by the defendants, who went into possession. The fact of the possession is admitted, and this is evidence of an assignment in the first instance. This principle has been held so often that it hardly needs the citation of authority to sustain it. It is broadly laid down in Anthony v. Wheeler (9 Cow., 88), Williams v. Woodward (2 Wend., 487), Quackenboss v. Clark (12 Id., 555), and approved in Bedford v. Terhune (30 N. Y., 453). All the facts are admitted Avhich are required to make out the plaintiffs’ case. No one thing is denied, except the assignment; and‘the occupation proves that.

I am at a loss to see how the answer can avail the defendants, even if it is conceded Planer had an interest to-assign. The rule implies an assignment from the occupation and possession, when proved ;—why does not the-same implication result from the admission ? It was the-duty of the defendants to have met the case stated in the complaint, by their answer and proofs. Savage, J., says, (in Quackenboss v. Clark), the fact of assignment is a transaction between the defendants and lessees, of which the plaintiff is not cognizant; the defendants are ; there is no hardship in concluding them by their possession, “unless they disclose the true state of their title. They might have set up and shown they were under-tenants ; they might have set up. and proved the term had expired before they went into possession. These facts would have disproved an assignment, which, without such proof, would be inferred from the fact of possession.”

The conceded facts fix the liability of the defendants for the use of the premises, and the plaintiffs’ right of action for the quarter’s rent of the year (30 N. Y., 458). In every aspect in which we have been able to view this case, though one of some difficulty, we think the judgment should be affirmed.

Judgment affirmed, with costs. 
      
      Present, Monell, Garvin and Jones, JJ.
     