
    George B. Collyer, Resp’t, v. Charles S. Collyer, Adm’r, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Landlord and tenant—When the law will not raise an implied.
    PROMISE TO PAT RENT.
    Where a party allowed another to continue in the occupancy of premises belonging to him, knowing that such other person did so with the understanding on her part that she was to pay no rent: Held, that the law will not raise in his favor an implied promise on her part to pay it.
    2. Same—When recovery por use and occupation had.
    Before a plaintiff can recover for the use and occupation of premises, he must show that the conventional relation of landlord and tenant existed between him and the person against whom recovery is sought, created either by express contract or by proof of circumstances from which the law will raise an implied contract.
    3. Same—When finding that obligation to pat rent exists error.
    Where the only finding was that the defendant’s intestate had the use and occupation of the house during the time mentioned: Held, that there is no warrant for a finding that the intestate ever became obligated to pay the plaintiff any rent; that there was error in law in ordering a recovery in his favor.
    4. Same—When contract to pay rent not implied.
    The possession and beneficial enjoyment of real property with the permission of the owner, is ordinarily sufficient to sustain an action upon an implied agreement for use and occupation, but where the use and occupation is under such circumstances as to show that there was no expectation of rent by either party, a contract to pay rent will not be implied,
    5. Same—When promise to pay board not implied.
    Where it was understood between a brother and sister that the latter was-living with the former as his sister and as a member of his family, the law will not convert her relations to him into that of a boarder, and imply a. promise on her part to pay for board.
    Appeal from a judgment of supreme court, general term, second department, affirming a judgment entered upon the report of a referee.
    
      Calvin Frost, for app’lt; Richard L. Sweezy, for resp’t.
    
      
       Reversing 12 N. Y. State Rep., 878.
    
   Earl, J.

—Elizabeth Oollyer, a sister of the plaintiff, died March 4, 1883, intestate. At the time of her death, she was about sixty years of age, and had never been married. She left personal estate which was inventoried at about-$70,000. The defendant was appointed her administrator, and thereafter the plaintiff .presented to him a claim against, her estate for rent of a house in the city of New York, known as No. 81 Lexington avenue, and for rent of a house in Sing Sing, and for board and other matters, amounting in all to $9,547.91. The claim was disputed by the defendant, and was referred by consent of the surrogate. It was thereafter brought to trial before the referee, and he allowed for rent of the Lexington avenue house, with interest, $4,457.48, and for rent of the house at Sing Sing, with interest, $660.40, and for board and other items amounting in all to $5,948.70. The report of the referee was confirmed and judgment entered thereon, and that judgment, upon appeal to the general term, has been affirmed.

The largest share of the claim allowed was made up of the rent of the two houses mentioned. The claim of the defendant is that his intestate occupied them under such circumstances that she never became liable for any rent, and whether or not that claim is well founded is the principle question to be determined upon this appeal.

The plaintiff and the intestate and their mother lived together as one family, in the Lexington avenue house, until the decease of the mother in 1865, after which time the plaintiff and the intestate resided alone there, she attending to the household duties without the aid of a domestic, while the plaintiff furnished and paid for all needed supplies. In 1873, the plaintiff married a lady much his junior. Some months after that, he and his wife ceased to live in the house, and the intestate resided there alone. The house contained much old furniture, some of which formerly belonged to plaintiff’s mother, and some of it belonged to him, and some to the intestate. The furniture was piled up in some of the rooms of the house, and the intestate used but a small portion of it, and occupied but a small portion of the house. The plaintiff’s wife was a witness for him, and gave the following description of the Lexington avenue house, as she found it in October, 1873, when she went' there with her husband to live.

“ When I first went to stay at all at the Lexington Avenue House, after I was married, there was no furniture visible except a few broken chairs, and everything else compared with them. The basement had no furniture in it. When I remained there over Saturday night and Sunday we ate in the kitchen in the back basement. That had a very little furniture in it. * * * The front basement had no furniture in it at all; it had no carpet on; a few old broken chairs stowed away. That is all there was on that floor that I have described, the basement floor. The parlor floor was furnished with three cane-bottomed chairs and an old carpet and a hair settee. There were two rooms on the parlor floor. I can’t say anything about the front room; the front room was locked. I bad no sight of that whatever. * * * The back parlor contained an old rocking chair, a hair settee, a .mirror, a few pictures; I guess that is all. I only know of one room being furnished on the floor above the parlor. That is the only room on the second floor that I was ever in. It contained a small desk, an apology for a writing-desk, used not very often, occasionally, by Mr. Collyer. It also contained a bed and three chairs, no bureau, an old broken washstand—this is the back room. The front room on the second floor was locked all the time I was there. I saw through the door of it a promiscuous gathering of everything—beds, chairs—a sort of junk shop. I would not say positively there was a bureau; There might have been. When I passed by I could see the things piled up to the ceiling at one end of it. I can’t say about the entire room because I didn’t see. I merely saw through a chink. The door stood ajar about six inches. This room, in which the furniture was piled, was occupied by Miss Collyer. She slept in that room.” Whenever the plaintiff had occasion to go to the city on business of his own, he would stop at the Lexington Avenue House with his sister. He paid for her groceries and the supplies furnished to the house. She kept no servant, and lived in the most parsimonious and penurious way. She occasionally rented some of the rooms in the house, as she said, for the purpose of getting some money. She continued to live in the house after the marriage of George until the spring of 1879. There was never any talk between her and him about rent. It does not appear that she requested permission to occupy the house, or that the plaintiff gave her express permission, or that any arrangement whatever was made about it.

The plaintiff gave proof showing beyond all question that she did not suspect that she was there as his tenant under obligation to pay rent, and the circumstances were such that he must have known how she understood it. If he allowed her to continue in the occupancy of the house knowing that she did so with the understanding on her part that she was to pay no rent, the law will not raise in his favor an implied promise on her part to pay it. Before the plaintiff can recover for the use and occupation of the house he must show that the conventional relation of landlord and tenant existed between him and his sister. Benjamin v. Benjamin, 5 N. Y., 383; Preston v. Hawley, 101 N. Y., 586. There must be proof, either that such relation was created by express contract, or there must be proof of circumstances from which the law will raise an implied contract. But the law will not imply a contract contrary to the intention of the parties. There is not an atom of proof in this case that the plaintiff ever expected any rent, or that the intestate ever expected to pay any. The irresist-; ible inference from all the proof is that she occupied and had the use of the house, or so much of it as she desired for her manner of living, free of rent. It is entirely clear that-if she had supposéd that she was occupying the entire house,, consisting of three stories, as a tenant, and that she was. expected to pay at the rate of $1,000 a year for the rent, thereof, she would not have remained there a day. Although the intestate lived four years after she left that house, always abundantly able to pay, it does not appear that the plaintiff ever claimed any rent of her or even mentioned the matter of rent to her.

Not only did the evidence not warrant a finding that the-conventional relation of lanlord and tenant existed between the plaintiff and the intestate, or that she ever agreed or expected to pay any rent, or that the plaintiff ever expected to receive any, but there is no finding of any of these facts,except that the intestate had the use and occupation of the house during the time mentioned. Upon such evidence we think there was no warrant for a finding that the intestate, ever became obligated to pay the plaintiff any rent. He gave her the use of the house. He allowed her to live there and to rent a portion of it without any expectation of compensation on his part; and hence there was error of law in ordering a recovery in his favor for the rent and the interest thereon.

As to the Sing Sing house, that was a large brick house* three stories and an atic high above the basement.

One of plaintiff’s witnesses testified that the intestate told her in the spring of 1879, “that she was going to Sing Sing,-, that her brother had offered her a home there.” The plaintiff testified that “in the spring of 1879, she did not goto Sing Sing directly; she went and hired a room down in Broadway alley, and when she found she had to pay rent, she went to Sing Sing—probably two weeks; she then went to Sing Sing to the house where I lived and remained there, until she died.”

When she first went to Sing Sing the plaintiff and his: wife were living in the brick house, and for four months she-lived in their family. Then the plaintiff and his wife went-away leaving her in the house. They returned again early in December of the same year and remained there until July, 1880, during which time the intestate lived with them, and they then again went away, and she remained there nearly all the time until her death. The house contained furniture of the plaintiff, and some furniture belonging to the intestate. She lived there alone, occupying a room or rooms in the attic or basement. She lived in a miserly,, penurious manner, occasionally renting some rooms in the house. She occupied this house precisely as she did the Lexington Avenue house, and the observations made about the occupancy of that house apply to this.

All the evidence forbids an inference that there was any expectation of the payment of rent on either side. _ Under such circumstances reason and justice do not require that a contract to pay rent should be implied, and there can be no presumption contrary to the intention of both parties that the relation of landlord and tenant, either in fact or law, existed. It is true that the possession and beneficial enjoyment of real property with the permission of the owner is ordinarily sufficient to sustain an action upon an implied agreement for use and occupation. Osgood v. Dewey, 13 John., 240; Coit v. Planer, 4 Abb. N. S., 140; Baxter v. West, 5 Daly, 460. But where the use and occupation of real estate is under such .circumstances as to show that there was no expectation of rent by either party, a contract to pay rent will not be implied, and this is such a case. There was, therefore, also error in awarding to the plaintiff rent for the Sing Sing house.

During the time above mentioned, to wit, four months in the summer of 1879, and seven months, from December, 1879, to July, 1880, the intestate lived in plaintiff’s family at the brick house in Sing Sing; and the referee allbwed plaintiff for her board during those months at the rate of thirty dollars per month, amounting with interest to $465.90. She lived with the plaintiff as a member of his family and not as a boarder. There was no request for board, and no arrangement whatever about it. The plaintiff proved that she said she was going there because “her brother had offered her a home there.” It is entirely clear that she did not expect to pay for her board, and that the plaintiff knew it. There can be no question that both parties understood that she was living there as his sister and as a member of his family; and under such circumstances the law will not convert her relations to him into that of a boarder and imply a promise on her part to pay for board. Williams v. Hutchinson, 3 N. Y., 317; Ross v. Ross, 6 Hun, 184; Carpenter v. Weller, 15 id., 134; Lynn v. Smith, 35 id., 275. There was, therefore, error in the allowance made to the plaintiff for the board of the intestate.

It is undoubtedly true that the plaintiff showed great .kindness and liberality to his sister. But no one can read this evidence and draw therefrom any inference that he expected any reward from his sister during her lifetime. He knew that she was to the utmost degree penurious and miserly, and that she would hoard her pelf and cling to her property so long as she lived. He doubtless expected that by his kindness to her she would be induced to make a favorable disposition of her property in his favor at her death. The fact that his expectation has been disappointed furnishes no ground for now stamping what at the time were acts of kindness and generosity with the mercenary features of contract and compensation.

We see no reason to doubt that the allowances made by the referee for the other items of plaintiff’s claim were properly made; but for the errors above mentioned the judgment of the general term and that entered upon the report of the referee should be reversed, and a new trial, granted, costs to abide the event.

All concur.  