#### Edwin P. Benedict, Respondent, *v.*Isaac S. Jennings, Appellant.

(Supreme Court, Appellate Term,

April, 1905.)

landlord and tenant — Action for use and occupation — When win not lie — Account stated — Retention of bill rendered.

A granite company, the assignee of a lease, assigned to defendant, not the lease but all its “ interest and title to all moneys on contract ”, with a third person and defendant went upon the premises to complete the work called for by the contract. Plaintiff, the lessor, served both lessees and assignees with a three days’ notice that unless a certain amount for back rent and *135royalty was paid summary proceedings to dispossess would be instituted. It was not deemed necessary to give any notice to defendant, nor was he a party to a surrender of the lease, nor did he have notice thereof until the day of trial, but continued work under Ms assigned contract occupying the premises to that end for about two months, when he was locked out without notice. Plaintiff’s version of interviews in which payment of the back rent and royalty was demanded of defendant, presumably as representing the granite company, was that the defendant disclaimed all liability as tenant. Defendant’s request for permission to stay upon the premises met with a consistent refusal and he was notified that he would be treated as a trespasser. Held, that no relation of landlord and tenant existed between the parties and that in the circumstances plaintiff was not entitled to recover for the two months’ use and occupation.

A delay of several months in replying to a bill rendered by plaintiff more than three years after the alleged occupancy, held short enough to negative acquiescence of an account stated, the rendition of the bill in the circumstances creating no obligation.

Appeal by defendant from a judgment of the Municipal Court of the city of New York, first district, borough, of Manhattan.

. Eustace Conway (Charles T. Williams, of counsel), for appellant.

Hamilton R. Squier, for respondent.

Leventritt, J.

There is nothing in this-record to support a recovery for use and occupation. The conventional relation of landlord and tenant did not obtain between the parties, and there is no evidence of any agreement, express or implied, between them.

The plaintiff originally leased the premises to certain persons who in turn assigned their lease in February, 1899, to a corporation, the Artificial Granite Company. On the last day of that month the granite company assigned to the defendant, not the lease,, but all its “ interest and title to all moneys on contract with the Manhattan Railway Company.” Under this agreement the defendant, who was interested in the granite company, furnished money to complete the *136contract, hut the actual work was performed by the men of the granite company. The defendant went on the premises to complete the work. On July 18, 1901, the plaintiff served both lessees and assignees with notice that unless hack rent and royalty in the sum of $500 he paid within three days dispossess proceedings would be instituted. It was not deemed necessary to give any notice to defendant nor was he a party to a surrender of the lease executed eleven days later by the lessees and assignees, nor did he have notice thereof until the day of trial. At various times prior to July 25, 1901, the plaintiff had demanded1 the back rent and . royalty of the defendant, presumably as representing the granite company. The plaintiff’s own version of these interviews is that the defendant disclaimed all liability. “ He said that he was in the occupation of a contract which, if it was successful, he would probably be a favorable tenant for me; and it would be delayed until such time as it was concluded * * * The object of his call was to have me permit him to continue his work at the factory, at the premises; which I would not grant * * * He said that he desired that I should lease the property to him by the month. I objected to that, requiring a whole year’s lease; nothing less than a full year.”

On July 25, 1901, the defendant wrote to the plaintiff: “ I heard nothing of any dispossess proceedings, but am perfectly willing to pay a proportionate rent for your property from the date of the order of dispossess, as that is only fair, and I will get out just as soon as I can get my things together unless you should wish to make a lease of the premises.”

Had this offer been accepted there might have been foundation for the action. Under date of July thirtieth, however, one day after the surrender of the lease, the plaintiff writes: “As to your request to stay in the premises a day or a week, cannot now be considered; we are quite willing to lease the premises but as a condition precedent to said releasing, the rent and royalty due Hay 1st., to wit: $500, must be paid. *I failed to learn or in any way comprehend the status of your holding our property*but this is to *137warn you that I will hold you responsible for anything that is taken away,” etc.

Ignorant of the surrender, the defendant continued the performance of his work under his assigned contract, occupying the premises to that end until September 27, 1901, when he was locked out without notice.

This action to recover for the two months’ use and occupation was begun more than three years later.

The judgment in plaintiff’s favor cannot be sustained on the facts recited. The defendant had no relation to the lease and assumed no obligation under it. His assignment was an assignment of a contract for merchandise to be manufactured. The plaintiff so regarded the situation as appears by his failure to include the defendant in the dispossess notice or to treat him as a necessary party to the surrender. No relation of landlord and tenant existed between the parties. While it is quite true that where leave to enter upon property and enjoy its use has been given, an agreement to pay for such use may be implied (Preston v. Hawley, 101 N. Y. 586; 139 id. 296; Biglow v. Biglow, 75 App. Div. 101), the record shows a consistent refusal to give such permission. The plaintiff at first, apparently treating the defendant as in some sort of privity wit-h the granite company under its assigned lease, insisted on a yearly term and refused to consider a monthly tenancy. After the surrender, treating with the defendant individually, the plaintiff asserts inability to understand his holding of the property, refuses to permit him to remain a day or week, and in the closing paragraph of the letter of July thirtieth, in effect, notifies him that he will treat him as a trespasser. The plaintiff’s subsequent action, coupled with his consistent refusal to let, shows that if he has any action it is in trespass and not for use and occupation.

The attempt to import an account stated into the case by the rendition of a bill more than three years after the alleged occupancy is too strained to require more than a passing word. Hnder the circumstances here disclosed, where the defendant disputed all liability, the retention of a bill without any answer could not create an obligation. The bill *138was made the occasion of a reply several months after ita receipt; the interval, however, compared with the delay in sending it is short enough to negative aequiesence.

The judgment must he reversed and a new trial ordered!

Scott and Gbeenbaum, JJ., concur.

Judgment reversed and new trial ordered, with; costs tie appellant to abide event.