Little v. Martin

3 Wend. 219

• Court: New York Supreme Court
• Decided: August 15, 1829
• Status: Published

Opinion

By the Court,

Marcy, J.

If ¡there is any error in this case, it is embraced in the first objection. As to the second, it is disposed of by the statute; for it expressly provides that if an agreement not by deed appears, the plaintiff shall not be nonsuited, but may use it to shew the amount that he is entitled to recover; and to the third, it is a sufficient answer to say, the action is not upon the contract; it has nothing to do with the suit any further than that the proof of it, though not made as the statute requires, establishes the fact that the defendant below went into the occupation of the premises, if in truth he did occupy them, by the permission of the plaintiff. This fact it was incumbent on the plaintiff to prove; and it is as well proved by shewing an entry under a void contract as under a valid one.

The exception is taken to the decision of the judge on the motion for a nonsuit; and the only question is, whether he erred in ruling that there was sufficient evidence to carry the cause to the jury. To sustain an action for use and occupation, actual occupation is not indispensably necessary. Rent in this form of action has been recovered where there was no actual occupancy by reason of the premises being burnt down, (4 Taunt. Rep. 45,) and also where the defendant has actually deserted them; and that too after the plaintiff had said to him he might quit if he pleased. (2 Campb. 103.) Taking the key, and entering into the premises without a continued actual possession, would be a sufficient use and occupation to enable the plaintiff to recover. The facts-proved by the plaintiff below would warrant the jury in findjng an 0CCUpanCy by the defendant in this case, and the judge therefore decided correctly in refusing the motion for a non-suit.

Judgment affirmed.-