Opinion
March, 1899.
Hawke Flannery, for appellant.
T.W. McKnight, for respondent.
Assuming that the collector of city revenue of the city of New York, was authorized to, and did rent the premises on behalf of the municipality to the plaintiff, which is a question which we do not determine here, there is no evidence establishing the relation of landlord and tenant between plaintiff and defendant. It appears that the defendant was in possession, that plaintiff demanded rent from defendant, and that none was paid. This is not sufficient to establish a contractual relation between the parties, and there can be no recovery for use and occupation until such relation can be said to exist. The defendant never acknowledged the plaintiff as landlord, and never promised to pay rent. The mere occupancy, and nothing more is here proven, is not sufficient to imply tenancy. Am. Eng. Ency., vol. 12, p. 661.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Present: BEEKMAN, P.J., GILDERSLEEVE and GIEGERICH, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.