
    Mary E. Thompson, Respondent, v. Howard B. Cox et al., Appellants.
    (City Court of New York, General Term,
    May, 1897.)
    Use and occupation — Pleading.
    A complaint alleging that plaintiff, being the tenant of a store, sublet a portion thereof to defendants, and that they took possession of and used other portions of said store during the term of said lease, - states a good cause of action for use and occupation of the additional-portions so taken and used.
    Appeal from order overruling a demurrer, from an interlocutory judgment entered thereon, and from the final judgment.
    O. Richter, for appellants.
    Thomas F. Byrne, for respondent.
   Schuchman, J.

This is an appeal from an order' overruling a demurrer, from the interlocutory judgment entered thereon, and from the final judgment entered upon the noncompliance of certain terms specified in the order.

The complaint sets forth a.cause of action for use and occupation of .part of a store, fixtures, mirror and show-case. It alleges,. that the plaintiff, -as tenant of the superior landlord, was in the. possession of the store and its appurtenances at No. 947 Broadway, and let part thereof to the defendant by a lease in writing, at an agreed rent; that beyond the parts of the store thus let, the defendants entered-and took possession of the following parts and appurtenances of said store premises during'the following period (enumerating both), for use in the business carried on by them, and further alleges the reasonable value of the occupation and use of. the'premises and fixtures. :

In short, the complaint shows that plaintiff, owning the whole store, let part of it to the defendants, and being the owner of the whole, the defendants used and occupied some portion of that.

The defendants demur on the ground that the complaint does . not state facts sufficient to constitute a cause of action.

The rule of .law applicable to the question is “that the possession and beneficial enjoyment of real property, with the permission 'of the owner, is ordinarily sufficient to sustain an action upon án implied agreement for use and occupation.” Preston v. Hawley, 139 N. Y. 296-300.

But wffiere the use and occupation of real estate is tinder such circumstances as to show that there was no expectation of rent by-either party, a contract to pay rent will not -be implied. Preston Y. Hawley, 139 N. Y. 301.

This fact is, however, a .question of proof at the trial, and if the evidence is then adduced on that point, it becomes a question for the jury to determine. Collyer v. Collyer, 113 N. Y. 442: Lamb v. Lamb, 146 id. 323.

The complaint is a good pleading, and the order and the judgments appealed from are affirmed, with costs of each appeal, with leave to the defendants to answer on payment of all costs up to this time.

Conlan and O’Dwyer, JJ., concur.

Order and judgments affirmed, with costs of each appeal, with leave to defendants to answer on payment of all costs up to this time.  