40 a trespasser, or has not recognized the owner as landlord in any way.41 Where defendant is in under a contract of sale, which is abandoned, the action lies; 42 so for past-due rent when corporate tenant was in under a demise ultra vires the corporation.43 It lies against a voluntary assignee, even when the assignment is void.“ When Action Lies and When Not. When the tenant is in under a deed the action for use and occupation does not lie.45 Nor does it lie in favor of the original owner without a surrender against a subtenant.46 The presumption is, however, that the subtenant is in as assignee of the original lease.47 Where one enters under a lease void as against the Statute of Frauds, the landlord may recover for use and occupation,18 and the rent reserved and terms of such lease are evidence in an action for use and occupation.49 In New York a tenant entering under a parol demise, void by the Statute of Frauds, and paying rent, may become a tenant from year to year, and a continuance of occupancy into the second year renders him chargeable with the rent until its close.50 But the mere fact that a person goes into possession under a demise, void under the Statute of Frauds, does not create a yearly tenancy but a tenancy at will, and he is liable only for actual occupation.51 48 Thomas v. Nelson, 69 N. Y. 118, 121; Talamo v. Spitzmiller, 120 id. 37; Laughran v. Smith, 75 id 205; cf. Reeder v. Sayre, 70 id. 180; Van Arsdale v. Buck, 82 App. Div. 383. 49 Talamo v. Spitzmiller, 120 N. Y. 37, 42; 8 220, supra; Gilfoyle v. Cahill, 18 Misc. Rep. 68, 70, 72; Williams v. Sherman, 7 Wend. 109; see $ 259, infra. 50 Coudett v. Cohn, 118 N. Y. 309; Unglish v. Marvin, 128 id. 380, 385; People ex rel. Botsford v. Darling, 47 id. 666; cf. Kernochan v. Wilkens, 3 App. Div. 596. 51 Talamo v. Spitzmiller, 120 N. Y. 37; Unglish v. Marvin, 128 id. 380; Prindle v. Anderson, 19 Wend. 391; People ex rel. Botsford v. Darling, 47 N. Y. 666; Hungerford v. Wagoner, 5 App. Div. 590; Israelson v. Wollenberg, 63 Misc. Rep. 293. Damages. Where there is no express agreement as to rent, the tenant must pay as much as the premises are reasonably worth.52 Action does not Lie if Premises to be Used for Unlawful Purpose. Knowlcdge by the landlord that the premises are to be used for an unlawful purpose will defeat this as every other form of action.53 Actual Occupation by Tenant not Necessary. Actual or manual occupation by the tenant is not essential to maintain an action for use and occupation; if the power to occupy and enjoy is given by the landlord, that suffices.54 55 Recovery, how Limited. The recovery cannot extend beyond the time of actual occupation or opportunity to occupy." Right of Way. The action does not lie for the use of a mere right of way.56 When Contract to Pay Rent not Implied. When the use and occupation of real estate is under such circumstances as to show that there is no expectation of rent by either party, a contract to pay rent will not be implied.57 The issue is, however, a question of fact for the jury. When Right of Re-entry not Reserved. When lease contains no clause reserving right of re-entry for nonpayment of rent, ejectment will not lie.59 There is, however, a remedy in equity for a rent seck.60 When Agreement Specific. When agreement for rent is specific, semble action for use and occupation does not lie.61 52 Scranton v. Booth, 29 Farb. 171; Coit v. Planer, 7 Robt. 413, 415. 53 Plath v. Kline, 18 App. Div. 240; § 231, infra. V. 54 Little v. Martin, 3 Wend. 220; Hall v. Western Transportation Co., 34 N. Y. 284; cf. Herrmann Curiel, 3 App. Div. 511; Wood v. Wilcox, I Den. 37; Beach v. Gray, 2 id. 84; Hoffman v. Delihanty, 13 Abb. Pr. 388. 55 Hall v. Western Transportation Co., 34 N. Y. 284; Hoffman v. Delihanty, 13 Abb. Pr. 38; Westlake v. De Graw, 25 Wend. 669; cf. Cros well v. Crane, 7 Barb. 191; Cleves v. Willoughby, 7 Hill, 83. 56 Forsyth v. Hartnett, 10 Hun, 573. 57 Preston v. Hawley, 139 N. Y. 301; Thompson v. Cox, 20 Misc. Rep. 421. 58 Collyer v. Collyer, 113 N. Y. 442; Lamb v. Lamb, 146 id. 323. 59 De Lancey v. Ganong, 9 N. Y. 25; Jones v. Reilly, 174 id. 97, 104. co Story, Eq. Jurisp., § 684. 61 Sherman v. Ludin, 84 App. Div. 579. § 221. Rent due on life leases recoverable. Rent due on a lease for life or lives is recoverable by action, as well after as before the death of the person on whose life the rent depends, and in the same manner as rent due on a lease for years. Formerly section 191, Real Property Law of 1896, chapter XLVI, General Laws: § 191. Rent due on life leases recoverable.-Rent due on a lease for life or lives, is recoverable by action, as well after as before the death of the person on whose life the rent depends, and in the same manner as rent due on a lease for years.62 Section 191 was formerly 1 Revised Statutes, 747, sections 19, 20 and 21: 19. Any person having any rent due upon any lease for life or lives, may have the same remedy to recover such arrears, by action of debt, as if such lease were for years.63 § 20. Every person entitled to any rents dependent upon the life of any other, may, notwithstanding the death of such other person, have the same remedy by action or by distress, for the recovery of all arrears of such rent, that shall be behind and unpaid at the death of such other person, as he might have had if such person was in full life. (As modified by chap. 274, Laws of 1846.64) § 21. The executors or administrators of every person to whom any rent shall have been due and unpaid at the time of his death, may have the same remedy by action or by distress, for the recovery of all such arrears, that their testator or intestate might have had, if living.65 Account of This Enactment. At common law, debt lay for the rent of lands demised for life, for years, or at will. But with this distinction, that upon a lease for years or will, it lay as soon as in arrears, but upon a freehold lease, it was not maintainable until after the lease determined in some way; e. g., by the death of cestui que vie. The English statute 8 Anne, chapter 14, section 4, put freehold leases on the same footing as leases for years. This statute did not, however, extend to the province of New York, but was nevertheless re-enacted in 1788 as a statute of the State. From the Revised Laws of 1813, it was incorporated in the Revised Statutes.68 62 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 63 Repealed, chap. 547, Laws of 1896. 64 Repealed, chap. 547, Laws of 67 1 Revised Statutes, 747, Sections 20, 21. I Revised Statutes, 747, sections 20 and 21,69 set out above, stood upon a different principle. At common law, where a man was seised of a rent service, rent charge, rent seck, or fee farm rent, either in fee or in tail, and died, neither his heir nor his personal representative could recover from the tenant the arrears of rent which had become due in the lifetime of the owner of the rent.7 70 The same defect applied to the case of a tenant pur autre vie of a rent who died, living cestui que vie. To remedy the former defect, it was enacted by the statute 32 Henry VIII, chapter 37, entitled "An act for recovery of arrearages of rent by executors of tenant in fee simple," that the executors should have an action for debt, and might also distrain for the rent unpaid at the time of the death of the person to whom the rent was due.72 This statute was re-enacted in 1788 in New York,73 and thence passed into the Revised Laws.74 The Revised Statutes adopted the principle of the Revised Laws, but simplified the language.75 Thus rights were given which did not exist by the common law, and proper remedies by action and distraint conferred. Distraint for Rent. Distraint for rent was taken away in 1846,76 and under the Constitution of 1846 the Code of Practice and statutes soon simplified the remedies for the collection of rent. But as the common law gave no rights in the cases mentioned above, the provisions of the Revised Statutes 77 have now again been re-enacted in this single section of the Real Property Law.78 With the aid of the Code of Practice 79 and other statutes 80 this section adequately provides a remedy in all the cases under any of the statutes above mentioned. Defective Lease. Where a lease contains no clause reserving right of re-entry, ejectment will not lie.81 69 Supra, p. 752. 70 Co. Litt. 162a. 71 Comyn, Landl. & Ten. 371; cf. 1 R. L. 438, § 17. 72 Wright v. Williams, 5 Cow. 501; Van Rensselaer v. Jones, 5 Den. 449; cf. Jacques v. Short, 20 Barb. 269, 274. 73 2 J. & V. 236, §§ 17, 18, 19; 1 K. & R. 134. 741 R. L. 438, 439. 75 1 R. S. 747, §§ 20, 21, and notes of Revisers to same. 76 Chap. 271, Laws of 1846, p. 369; Michaels v. Fishel, 169 N. Y. 381, 389; Peabody v. Long Acre Square 79 Regulating actions, judgments, executions, etc. 80 See Summary Proceeding Acts, “Consolidation Act," and 2 R. S. 113, § 3. For an interesting account of the remedy by Summary Proceedings, see Michaels v. Fishel, 169 N. Y. 381, 389. 81 Supra, p. 751. § 222. When rent is apportionable. Where a tenant for life. who shall have demised the real property, dies before the first rent day, or between two rent days, his executor or administrator may recover the proportion of rent which accrued to him before his death. Formerly section 192, Real Property Law of 1896, chapter XLVI, General Laws: § 192. When rent is apportionable.- Where a tenant for life, who shall have demised the real property, dies before the first rent day, or between two rent days, his executor or administrator may recover the proportion of rent which accrued to him before his death.82 Section 192 was formerly 1 Revised Statutes, 747, section 22: § 22. When a tenant for life, who shall have demised any lands, shall die on or after the day when any rent became due and payable, his executors or administrators may recover from the under tenant, the whole rent due; if he die before the day when any rent is to become due, they may recover the proportion of rent which accrued before his death.83 Apportionment of Rent. This section does not apply to perpetual rents. At common law rent reserved on estates for years or life could not be apportioned in respect of time.85 Thus, where life tenant demised and died the day before a quarter day and the lease determined, his executors could not claim an apportionment of the rent; nor could the remainderman or reversioner claim that part of the rent which accrued during the life of the tenant for life; so that the lessee paid nothing. This state of things was remedied in England by the statute II George II, chapter 19, section 15.87 The English act was re-enacted in New York in 1788,88 and passed into the Revised Laws of 1813,89 and thence into the Revised Statutes.90 But this statute was strictly construed, and did not extend to a case where the lease was not made by tenant for life, but was made before tenant for life's estate vested.91 82 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 83 Repealed, chap. 547, Laws of 1896. 84 See above, at p. 202. 85 Covenants to apportion were consequently inserted in most leases. 86 Cruise, Dig., tit. 28, chap. 3, 44; Marshall v. Moseley, 21 N. Y. 280, 282; Zule v. Zule, 24 Wend. 76; O'Neill v. Morris, 28 Misc. Rep. 613, 616. |