
    Martha A. Biglow, Respondent, v. Harriet M. Biglow and Louisa Wooster, Appellants.
    
      Action for me and occupation—the contractual relation of landlord and tenant is essential — effect of a notice, to an occupant holding adversely, that a certain rent would he required — one tenant in common cannot sue his cotenant for use and occupation.
    
    An action for use and occupation of land cannot be maintained unless it appears that the contractual relation of landlord and tenant existed between the plaintiff and the defendants. Consequently, where it appears that the defendants’ possession of the premises was from the time of its inception hostile to the plaintiff, the action cannot be maintained, notwithstanding the fact that the plaintiff served upon the defendants a written notice stating that unless the defendants moved off the premises within a certain time the plaintiff would hold them liable for rent for her undivided one-half of the premises at a certain specified rate, and that the defendants continued to occupy the premises with- . out paying any attention to the notice.
    One tenant in common cannot maintain an action against a cotenant for the use and occupation of the premises held in common.
    Appeal by the defendants, Harriet M. Biglow and another, from a judgment of the Supreme Court in favor of the plaintiff',' entered in the office of the clerk- of the county of Clinton on the 21st day of November, 1901, upon the verdict of a jury.
    ■ The facts are substantially as follows:
    In 1867 the premises in question were owned by John C. and Joseph Biglow. At that time — as found by the referee in the partition suit hereinafter mentioned — Ruby Biglow, their mother, entered into the possession of such premises under said John 0. and Joseph. The terms, extent or character of such tenancy do not appear, but-it would seem to have been a tenancy at will or at sufferance. These two defendants, their sisters,, lived there with -the said mother,
    Such was the situation when on March 15,1892, Joseph Biglow’s undivided one-half of such premises was conveyed to this plaintiff, who is his wife. In May, 1892, Ruby Biglow died, and the plaintiff on the twentieth of such month served upon these defendants, who still continued to reside upon the premises^ a written notice substantially to the effect that, unless they moved off of the- premises within six days, she would hold them for the rent of her undivided one-half at the rate of four dollars per month and the payment of taxes. To this notice the defendants made no reply. They continued to occupy the premises, paid no rent, and gave the notice so served upon them no attention.
    In September, 1897, this plaintiff commenced an action against her cotenant, John O. Biglow, and these defendants for the partition and sale of such premises, and she averred in her complaint that they were in possession, holding adversely to her. These defendants answered, claiming to be the owners in fee of the whole of said premises and to have acquired the title thereto by adverse user. The issues in such action were referred, and' the referee found substantially as above stated. Such finding' defeated the defendants’ claim to title by adverse user, and judgment was, therefore, ordered in such action partitioning the property between John 0. and this plaintiff in equal shares; adjudging that these defendants never had any interest therein, and decreeing a sale of the same. Such sale was had, and on May 4, .1901, the property was sold and conveyed by the referee to these defendants. It further appears that, on February 8, 1899, John 0. Biglow conveyed his one-lialf to the defendants, and distribution of the proceeds of sale was made accordingly.
    In June, 1901, this action was brought by the plaintiff against these defendants to recover from them for the use and occupation of her undivided one-lialf of such premises. The trial court held that the plaintiff was entitled to recover for the same, and left to the jury the single question as to the value of such use and occupation, and instructed them that the time for which she was entitled to recover was five years and ten months. The jury fixed such value at $105, and rendered a .verdict for that amount. From the judgment entered thereon this appeal is taken. " —> -
    
      W. JET. Dunn, for the appellants.
    
      John H. Booth,, for the respondent.
   Parker, P. J.

In order to maintain this action for use and Occupation, the plaintiff must make it appear that the contractual relation of landlord and tenant existed between herself and thesé defendants. (Preston v. Hawley, 101 N. Y. 586; S. C., 139 id. 296.) That proposition she does not deny, but she claims that the finding of the. referee in the action for partition against these defendants conclusively establishes that such relation did exist, and also that their continuing to remain upon the premises after the notice of May, 1892, was served upon them authorizes the implication that thereafter they intended to assume that relation towards her.

Neither of these claims can, in my opinion, be sustained.

First, as to the referee’s report.

If it be' conceded that the facts, as therein found, are evidence against these defendants, nevertheless such facts do not show that the relation claimed by the plaintiff ever existed as between these defendants and John C. and Joseph Biglow.

The twelfth finding of fact is to the effect that Buby, the mother, entered into possession of the premises in 1867 as their tenant, recognizing their title, and did not entér under any title or claim of ownership in herself.

The thirteenth finds that the same is true of these defendants.

But the twenty-second finds as follows: That the defendants Harriet Biglow and Louisa Wooster made no claim of any interest in the property during the lifetime of Buby Biglow, but simply resided with théir mother upon the property.” And the twenty-third finds: That whatever interest the defendants Harriet Biglow and Louisa Wooster claim in the property they claim under the will of their mother, Buby Biglow.”

Beading all of these findings together, it is apparent that while the mother 'entered under an arrangement with John C. and Joseph, as owners, the daughters—these defendants — were not cotenants with her. They neither took nor claimed any interest during her life. They had no possession of the property, no relation whatever with the owners. They “ simply resided, with their mother upon the projjerty.” After their mother’s death in May, 1892, the daughters for the first time took possession. But that possession, instead of being as tenants of John C. and Joseph Biglow, was taken as devisees of their mother. They then claimed that their mother and not John C. and Joseph was the owner, and from that time they held adversely to-them and their title.

Such was the situation as shown by the referee’s report, and also from the plaintiff’s averment in her complaint in that action, that these defendants held and claimed adversely to her; and it is further manifested by the fourth provision of the judgment that they never had any interest in the premises.

In construing the referee’s report it must be remembered that the only issue upon which he was to pass with reference to these defendants was whether they and their mother had for more than twenty years held adversely against John 0. and Joseph Biglow. Their holding, commencing in 1892 was not sufficient in length of time; that of their mother prior to that date was as a tenant of John 0. and Joseph, and hence not adverse. And so their claim to own the premises failed. But it was, nevertheless, a definite and adverse claim, and squarely in opposition to the theory that they ever held the premises as. tenants of John 0. and Joseph Biglow. Therefore the plaintiff’s claim that as grantee of Joseph Biglow the relation of landlord to these defendants was transferred to her is not sustained. No such relation, nor any whatever, ever existed between Joseph and these defendants.

Nor does the fact that the defendants made no response to the notice served by the plaintiff upon them on May 20, 1892, indicate that thereafter they intended to remain there as her tenant.

When leave to enter upon property and enjoy the use of it has been given, an agreement to pay for such use may be implied. (Preston v. Hawley, 139 N. Y. 296, 300.) But it seems clear that no such implication should arise when the party against whom the claim is made obtained no such leave, but holds under a title hostile to the party so claiming, and himself claims to be the owner. These defendants had never asked for nor acquired any possession from the plaintiff or her grantor. They took possession as trespassers, and from that moment disputed the title under which she claims. It required an adjudication by the courts to settle these several claims, and such a situation clearly repels the inference that these defendants occupied the premises from May 20, 1892, to the date of such judgment under an agreement to pay her for the use and occupation of the same.

It is further suggested by the plaintiff that she may recover from the defendants the reasonable use of such premises on the ground that they, as trespassers, unlawfully withheld such premises from her.

Concede that in an action of ejectment she might have recovered her- undivided interest in the lands and also as mesne profits her one-lialf of the value of their use, and further concede that if she omits to include such claim in the action by which her title is established she may thereafter recover her damages in an action in the nature of trespass (Holmes v. Davis, 19, N. Y. 488), still this action is not one either in ejectment or in trespass. It is distinctly one upon contract to recover for the use and occupation of the lands. It proceeds upon the allegation in the complaint that the defendants went into possession of the premises as the tenants of her grantor, and after the title passed to her that they elected to remain as her tenants at a fixed rate of four dollars per month. There is no suggestion of any right to recover other than upon the implied agreement by which the relation of landlord and tenant was created. As shown above, her proof fell far short of establishing such a claim. And it is well settled that a party coming into court asserting one cause of action cannot recover on another and different one.” (National Commercial Bank v. Lackawanna Transportation Co., 59 App. Div. 270, 274.)

But moreover it appears that on February 3, 1899, the undivided one-half which John 0. owned in such premises was conveyed to these defendants. They thereupon became tenants in common with the plaintiff, and an action for use and occupation will not lie by one tenant in common against the others. After that date the possession and holding of the defendants was in their own right as such cotenants. But this judgment awards- to the plaintiff a sum for the use and occupation during the- two yéars and upwards between February 3, 1899, and May 4, 1901, and in that respect was evidently erroneous.

These considerations require a reversal of the judgments

All concurred.

Judgment reversed on the law and facts, and new trial granted, with costs to. appellant to abide event.'  