#### Coit *vs.*Planer.

1. What allegations in the complaint are sufficient to show a cause of action for use and occupation.

2. An action on the case for use and occupation is founded upon contract, and lies only when the relation of landlord and tenant exists. Such contract need not, however, he express ; it may he implied from circumstances.

3. Thus, where the defendants, being notified what the rent of premises belonging to the plaintiff would be, if they used them, went into possession and occupied and enjoyed the use of the premises for fifteen months; *Held*that the court was bound to infer an agreement, and promise to pay a reasonable compensation. And that the promise or contract having been made out, the relation of landlord and tenant followed.

. *4.*In an action for use and occupation, possession by the defendants of premises originally leased to another, is sufficient evidence of an assignment of them by the lessee to the defendants, to warrant a recovery against the latter directly.

(Before Monell, Garvin and Jones, JJ.)

Heard and decided May —, 1868.

Appeal from a judgment ordered at a special term.

The complaint set forth that on September 10, 1864, Louis Planer and Joseph Kayser were the tenants, and in possession of certain premises in the city of Kew York, belonging to the plaintiffs, known as Kos. 85, 87 and 89 Elizabeth street, and on that day agreed with the plaintiff, that if he would erect and build an additional story on a certain building on said premises, for their use and occupation, they (Planer and Kayser) would pay the plaintiff an annual rent of $150 therefor, payable quarterly in advance; that the plaintiff' did erect said additional story, and Planer and Kayser entered into possession thereof, on or about the first day of January, 1864, and have paid the plaintiff for the rent, use and occupation thereof, up to February 1, 1866, but refused and declined to enter into any written agreement with the plaintiff for the letting or hiring of said additional story. That some time during the quarter ending on February 1, 1866, Planer and *414Kayser assigned and transferred to the defendants, Planer, Bramsdorf and Vail, all their right, title and interest in the said premises, 85, 87 and 89 Elizabeth street, including the-additional story above mentioned, and the defendants entered into, and ever since have been, and now are in the full use and occupation and enjoyment thereof; and that $75 is a fair and reasonable rent and sum for the use and occupation of said additional story for three months,, ending May 1, -1866. The plaintiff further stated that he notified the defendants that if they used and occupied the additional story, the _ rent of the same for the year commencing on May 1,1866, would be $400, payable quarterly in advance; which rent the plaintiff" averred is a fair and reasonable rent and sum for the occupation of the additional story; that said defendants have not paid the sum of $75 nor $400, or any part thereof. The complaint, therefore, demanded judgment for $475, and costs.

The defendants, in their answer, denied that some time during the quarter ending February 1, 1866, referred to in the complaint, or at any other time, Planer and Kayser assigned or transferred to. the defendants all their right, title and interest in said premises.

The cause was tried before Justice Babboub, without a jury. Upon the trial, without evidence upon either side, the defendants moved the court to dismiss the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action; • which motion was denied, and the defendants excepted. The plaintiffs then moved the court for judgment on the pleadings. The court granted the -motion, and granted judgment for the plaintiff; and the defendants excepted. Judgment was-entered accordingly; from which the defendants appealed.

*A. C. Morris,*for the appellants.

*Alfred Roe,*for the respondents. ■

*415
      *By the Court,*Garvin, J.

This action is brought to recover a reasonable compensation for the use and occupation of an additional story used by the defendants, from February lj 1866, up to and including May. 1, 1867.

The complaint alleges the plaintiffs’ ownership; notice to the defendants that if they used the premises he would charge them $400 per year therefor; that the defendants entered into possession;. use and occupation by. the defendants for fifteen months ; that the amount claimed is a reasonable sum; and that, during the quarter preceding May 1, 1866, the said Planer and Kayser. assigned and transferred to the defendants all their right, title and interest in the premises in Elizabeth street; that Planer and Kayser refused to enter into any written agreement for the letting or hiring of the additional story; and that the rent is still unpaid. All these allegations, except the assignment, are admitted, for want of any denial in the answer.

That such a complaint contains facts sufficient to constitute a cause of action for use and occupation for the one year, will hardly be denied. In the absence of any written or verbal agreement for the duration of their term, Planer and Kayser were only tenants of the additional story from year to year; and their term expired May 1, 1866, (1 *R. S.*744, § 1;) thus showing a clear cause of action against the defendants for use and occupation of the premises for the year beginning in May, 1866.' After that date, the defendants could not have been under-tenants of Planer and Kayser; .their term expired before the defendants’ commenced. If not under-tenants, the defendants are liable to the plaintiffs as owners. ( *Wood*v. *Wilcox,*1 *Denio,*38. 7 *Hill,*88. 1 *R. S.*748, § 26.) The use and occupation of the premises would imply a promise to pay what they were reasonably worth, or, in other words, a reasonable compensation.

*416But it ie objected that an action on the case for use'and occupation is founded upon contract, and lies only when the relation of landlord and tenant exists. This is a sound principle, and rests not only upon authority but upon the statute. Such contract need not, however, be express; it may be implied from circumstances. *(Despard*v. *Walbridge,*15 *N. Y. Rep.*374. 13 *John.*297, 240. 1 *Wend.*134. 17 *Barb.*149.)

It is admitted that the defendants went into possession, • occupied and enjoyed the use of the premises for fifteen months. They were notified what the rent would be if they used the premises. They deprived the plaintiffs of the use and occupation of them, and took the benefit and had the advantage. Upon these facts we are bound to infer an agreement,.and promise to pay a reasonable compensation. The promise or contract having been made out, the relation of landlord and tenant follows.

This disposes of the defense to the plaintiffs’ claim for the year succeeding May 1, 1866, but leaves the question of compensation for the last quarter preceding that period undisposed of. It is averred that there was an assignment and transfer to the' defendants of all the interest of Planer and Kayser to the additional stoiy.; that it was. occupied by the defendants, *who went into possession.*The fact of the possession is admitted, and this is evidence of an assignment in the first instance. This principle has been held so often that it hardly needs the citation of authority to sustain it. It is broadly laid down in *Armstrong*v. *Wheeler,*(9 *Cowen,*88 *;) Williams*v. *Woodard,*(2 *Wend.*487 *;) Quackenboss*v. *Clarke,*(12 *id.*555;) and approved in *Bedford*v. Terhune, (30 *N. Y. Rep.*453.) All the facts are admitted which are required to make out the plaintiffs’ case. Ko one thing is denied, except the assignment; and the occupation proves that.

I am at a loss to see how the answer can avail the de*417fendants, even if it is conceded Planer had an interest to assign. The rule implies an assignment from the occupation and possession, when proved; why does not the same implication result from the admission ? It was the duty of the defendants to have met the ease stated in the complaint, by their answer and proofs. Savage, J. says, (in *Quackenboss*v. *Clark,)*the fact of assignment is a transaction between the defendants and lessees, of which the plaintiff is not cognizant; the defendants are; there is no hardship in concluding them by their possession, “unless they disclose the true state of their title. They might have set up ánd shown they were under-tenants; they might have set up and proved the term had expired before they Went into possession. These facts would have disproved an assignment, which, without such proof, would be inferred from the fact of possession.”

The conceded facts fix the liability of the defendants for the use of the premises, and the plaintiffs’ right of action for.the quarter’s rent of the year. (30 *N. Y. Rep.*458.) In every aspect in which we have been able to view this case, though one of some difficulty, we think the judgment should be affirmed.

Judgment affirmed, with costs.