
    Edward Fougera, Resp’t, v. Isidor Cohn et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 15, 1887.)
    
    1. Landlord and tenant—Use and occupation—Action for—Relation OF LANDLORD AND TENANT MUST EXIST—RELATION MAT BE INFERRED.
    The plaintiff drew up an instrument purporting to he a lease of premises, to the defendants for two years and five months, at a yearly rent agreed upon. This paper, however, was not properly executed. The defendants entered into possession of the premises at the time specified in the lease, and occupied the same for one year and five months, and paid the rent reserved in the lease at that time. They then removed from the premises and left them vacant, and desired to make a surrender of them to the plaintiff. In an action brought to recover for rent of the premises for the five months next succeeding the time for which rent was paid: Held, that the conventional relation of landlord and tenant was essential to the maintainance of an action for use and occupation, but that neither a written instrument or express agreement were indispensable requisites to the formation of that relation, and that the rule might be satisfied by proof of facts and circumstances sufficient to justify an inference that the parties intended to assume that relation.
    '2. Same—Entry under void lease—Effect of.
    
      Held, that in this case a tenancy was created by the entry of the defendants and the payment of rent, in pursuance of the terms of the instrument intended, although it had no legal inception as a valid lease, and that in view of the circumstances, the law inferred an intention of the parties to create a tenancy from year to year, upon the terms specified in the instrument.
    3. Same—Lease from year to year—When implied.
    
      Held, that the tenants had the right to terminate the tenancy at the expiration of the first year, by giving a sufficient and proper notice, but that failing in" this, the law implied against them a further lease for the succeeding year, upon the same terms as the first.
    
      Carpenter & Roderick, for resp’t: Simpson & Werner, for app’lts.
   Dykman, J.

This action is brought to recover compensation for the use and occupation of certain premises in the City of Brooklyn.

There was a lease drawn which was designed to embody the terms of the tenancy of the defendants, and which prescribed a term of two years and five months to commence on the first day of March, 1884 and terminate on the first' day of August, 1886, at a yearly rent of $3,000, payable monthly, but it was not properly executed.

The defendants entered into possession of the premises at the time specified in the lease and occupied the same until the first day of August, 1885, one year and five months, and paid the rent reserved in the lease down to that time.

They then removed from the premises and left them vacant and desired to make a surrender of them to the plaintiff, which he refused to accept and brought this action for the use and occupation of the premises for five months ending on the thirty-first day of December, 1885.

Both parties proceed upon the assumption of the invalidity of the lease, and with that concession the defendants seek to limit their liability to actual occupation only, and as they have paid for all of that, they resist the demand made against them in this action.

The existence of the conventional relation of landlord and tenant is essential to the maintenance of an action for use and occupation. Preston v. Hawley, 101 N. Y., 588. Yet while this is a fundamental principle of law neither a written instrument nor an express agreement are indispensable requisites to the formation of that relation. The requirement of the rule may be satisfied by proof of facts and circumstances sufficient to justify an inference that the parties intended to assume that relation. Benjamin v. Benjamin, 5 N. Y., 383.

° In this case a tenancy was created by the entry of the defendant’s and the payment of rent in pursuance of the terms of the lease, although it had no legal inception as a valid instrument between them.

Further, in view of all the circumstances surrounding this case the law infers an intention of these parties to create a tenancy upon the terms specified in the lease from year to year.

The defendants were thus clothed with the right to terminate the tenancy at the expiration of any year by giving a proper and sufficient notice. Laughran v. Smith, 75 Ñ. Y., 209; Reeder v. Sayre, 70 N. Y., 180.

But as the defendants failed .to terminate their tenancy at the expiration of the first year of their holding, the law for that omission implies against them a further contract to renew the tenancy for another year upon the same terms as the year preceding. Conway v. Starkweather, 1 Denio, 113; Schuyler v. Smith, 51 N. Y., 309; Laughran v. Smith, 75 N. Y., 210.

There seems to be no escape from liability for the defendants in this action, their entry upon the premises was in pursuance of an express agreement, and both parties contemplated a yearly tenancy. The defendants occupied for more than a year and paid rent in accordance with the terms of the lease that was written, although void.

Continuing their occupation after the end of the first year of their tenancy, the defendants became bound for the rent for another year, and could not escape that liability by an abandonment of the premises.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  