
    VAN BRUNT against POPE.
    
      Supreme Court, Second District ; Special Term,
    
    
      June, 1869.
    Use and Occupation.--—Measure of Recovery after, Expiration of Lease.
    A tenant occupying the premises after the expiration of the lease, when the title is in dispute, and there is no recognized landlord, is liable for the use and occupation according to the value thereof, and the rate of rent which was fixed by the lease is not conclusive on either party.
    
      This action was "brought "by Nicholas Van Brunt, the receiver of the rents, profits and income of the estate of ¡Ezra Lewis, deceased, against Gideon Pope, to recover the value of the use and occupation of a house and lot "belonging to the estate.
    The facts were these : Ezra Lewis had in his lifetime rented to the defendant the house and lot in question, for the term of one year, ending May 1, 1865, at the annual rent of $550. He died February 4, 1865, leaving an alleged last will and testament, devising his real estate, and appointing executors. The probate of this will was contested by his heirs, and pending the litigation, on February 26, 1867, the plaintiff was appointed receiver of the rents, profits and income of the estate, and was authorized to commence this action. The defendant continued to occupy the premises till May 1, 1867. No letters testamentary or of administration were granted on said estate. Plaintiff claimed more than $550 per annum for the use and occupation, and the principal question litigated was whether the defendant was chargeable with the real value of the use and occupation of the premises, or with the amount of annual rent as established by the lease expiring May 1, 1865.
    
      George C. Blanke, for the plaintiff,
    that the rule that a tenant should pay rent at the same rate fixed by a former lease, where he continues in possession with the landlord’s consent, without any new agreement, is based on a tacit consent on both sides that the tenant should hold from year to year at the former or first rent (Abeel v. Radcliff, 15 Johns., 509); but where the title is in dispute, and there is no recognized landlord, this rule cannot be applied, and the occupant is chargeable with the value of the use and occupation.
    
      Vose & McDaniel, for the defendant,
    claimed that the rent was fixed by the former lease at $550 per annum, and defendant was not liable for any greater sum.
   Gilbert, J.

The defendant is liable for the quarter’s rent due May 1, 1865, at the rate of $550 per annum, and for the remainder of the time of his occupation of the premises he is liable for the value of the use and occupation of said premises, and the rent fixed by the lease is not conclusive on either party.  