
    Barney Isaacs, Respondent, v. Sarah Minkofsky, Appellant.
    (Supreme Court, Appellate Term,
    October, 1899.)
    Use and occupation — Recovery for the use of a shed not surrendered.
    Where a tenant, who has occupied premises under an oral agreement of lease and paid rent therefor, subsequently surrenders every part of the premises except a shed in the yard, and locks that up, and thereafter uses it for her own purposes, the landlord may recover of her for the use and occupation of the shed during such time as she had exclusive possession of it.
    Appear from a judgment, in favor of the plaintiff, rendered in the Municipal Court of the city of Flew York, sixth district, borough of Manhattan.
    Abraham H. Sarasohn, for appellant.
    Arthur Rothschild, for respondent.
   Leventritt, J.

The facts in this case which, in view of the justice’s finding in favor of the plaintiff, we must regard as established, are briefly these:

In June, 1898, the plaintiff and the defendant entered into an oral agreement for a lease of certain premises for a term of years at a stipulated monthly rental of $77.50. Pending the execution of the formal indenture of demise, the defendant deposited the sum of $150, as security, entered upon the possession of the premises, and paid the agreed rent for the first month of the proposed term. The premises consisted of a store, a series of living apartments on the several floors above it and a yard containing an outhouse or shed of substantial dimensions. The defendant occupied the store, collected the rents from the various tenants of the living apartments, and placed in the shed a large quantity of material required in the prosecution of her business. A disagreement having subsequently arisen between the parties as to the terms and conditions of the lease, the defendant refused to pay the second month’s rent and surrendered the possession of the premises with the exception of the shed. This she locked, retaining the key, and continued to use it as a storehouse for material for a period of eleven months when she finally •removed.her stock The plaintiff in the interim, and immediately upon surrender by the defendant of the rest of the premises, had . proceeded to collect the rents from the tenants and had relet the store vacated by the defendant. In April, 1899, one month prior to the removal by the defendant of her stock of goods from the shed, she recovered, in a suit instituted for that purpose, the amount deposited as security. Thereupon this action was begun to recover, first, for the use and occupation of the shed during a period of eleven months, and, secondly, for the amount of certain rents, collected by the defendant, for the month succeeding her relinquishment of the premises. The plaintiff recovered on both counts, and from the judgment in his favor the defendant has appealed.

We are of the opinion that this judgment must be affirmed.

To maintain the action for use and occupation, the plaintiff must prove his title to the premises, occupancy by the defendant, and the existence of the conventional relation of landlord and tenant. Preston v. Hawley, 101 H. Y. 588. Ho question is raised as to the title, and the defendant concededly occupied the entire premises during the month of July, and the outhouse or shed for eleven months thereafter. The occurrence of these two elements, however, in the absence of proof of the existence of the conventional relation of landlord and tenant, would be insufficient to charge the defendant. Alt v. Gray, 26 Misc. Rep. 843. The existence, of that relation during the month of July is not questioned by the defendant; the payment of rent established it. The subsequent surrender or abandonment of part of the premises did not destroy the conventional relation, already created, from continuing as to the remainder. It was optional with the landlord to permit the tenant to yield possession of the main premises and retain that of the shed. As to the latter, he could have elected to regard the defendant as a trespasser or else to have held her liable for the use. The defendant cannot complain; she kept exclusive possession and control of the shed and locked it against the plaintiff and all others. She saw fit to enter upon and occupy the premises in anticipation of the execution of a formal lease; and the relation thereby created was not destroyed by its nonexecution. Little v. Martin, 3 Wend. 220.

The second ground of appeal may be dismissed with few words. The husband of the defendant admitted, on the stand, that, as her agent, he collected twenty dollars belonging to the plaintiff. Under the circumstances her liability is incontestable.

The judgment will be affirmed.

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs to respondent.  