In the case of Gregg v. Tamsen, 42 App. Div. 138, [58 N.Y. Supp. 1026], the court says: "There can be no doubt that in an action for use and occupation, such as this was, the plaintiff is not entitled to recover unless he shows that the conventional relation of landlord and tenant exists"; in support of which the court cited several cases. The law seems to be well settled that in the absence of a contractual relation the action will not lie. ( Alt v. Gray, 26 Misc. Rep. 843, [56 N.Y. Supp. 657]; Stevens v. Hulin, 53 Mich. 93, [18 N.W. 569].) Appellant concedes this to be the law, but insists that the notice given by plaintiff to defendant that the latter would be liable for rent if he continued to use and occupy the premises after May 1, 1911, should be construed as a finding that such relation did exist.

The occurrence of these two elements, however, in the absence of proof of the existence of the conventional relation of landlord and tenant, would be insufficient to charge the defendant. Alt v. Gray, 26 Misc. 843. The existence of that relation during the month of July is not questioned by the defendant; the payment of rent established it.

Where defendant never recognized the plaintiff as landlord and never promised to pay rent, the mere occupancy, and nothing more, is not sufficient to imply tenancy. ( Alt v. Gray, 26 Misc. 843.) An action for use and occupation will not lie in favor of the owner against one who entered without the owner's consent and without any authority whatsoever or right to such use.