Bommersheim v. Forman

The action is brought to recover the reasonable value of the use and occupation of certain premises in the city of New York. The plaintiff proved that she held a written lease of the premises in question, under which she was. entitled to the possession thereof from October 1, 1912, for a term of three years. One Esse G. Davis also held an oral lease of the same premises from the plaintiff’s lessor as tenant from month to month, and subleased to the defendant the portion thereof occupied by him at a monthly rental. On October 24, 1912, the plaintiff served upon Esse G. Davis a notice in writing that she had elected to terminate her tenancy on November 1, 1912, and would commence summary proceedings for her dispossession unless she removed by that date. On November 2, 1912, the plaintiff issued summary proceedings against Esse G. Davis and her subtenants, including the defendant, and on December 6, 1912, a final order of dispossession was issued, awarding possession of the premises to this plaintiff. In the. meantime the defendant paid rent for the premises to Esse G. Davis for the months of October and November, 1912; but after the warrant of dispossession was issued to the plaintiff the defendant paid rent to the plaintiff and continued to occupy the premises as her tenant after December 1, 1912.

[1-4] There is nothing in these facts from which a relation of landlord and tenant between the plaintiff and defendant during October and November could be implied. The defendant held the premises during October as the tenant of Esse G. Davis, whose tenancy was recognized and affirmed up to November 1st by the plaintiff in her notice of termination. After November 1st the defendant could not be a holding over tenant of the plaintiff, because no relation of landlord and tenant had ever previously existed between them. He was not a holding over tenant of Esse G. Davis, for the reason that the final order of dispossession is conclusive proof that her term expired on November 1st. There was accordingly no privity of contract or estate between these parties during the months of October and November, and no relation of landlord and tenant has been shown. Eells v. Morse, 208 N. Y. 103, 101 N. E. 803. No action for use and occupa*649tian can be maintained unless the relation of landlord and tenant existed. Real Property Law, § 220; Preston v. Hawley, 139 N. Y. 296, 34 N. E. 906; U. M. Realty & Imp. Co. v. Roth, 193 N. Y. 570, 86 N. E. 544.

The judgment appealed from must therefore be reversed, with costs, and the complaint dismissed, with costs. All concur.