The plaintiff sues to recover $105 claimed to be due it from the defendant for use and occupatiоn of apartment 6-A in premises 1230 Park avenue, borough of Manhattan, for the period from January 16, 1937, to and including March 1, 1937, at the agreed price and reasonable value of seventy dollars per month.
The answer is a general denial, and upon the trial the plaintiff’s complaint was amended to add a second cause of action reading: “ Action for rent of apartment 6-A in building and premises 1230 Park Avenue, Borough of Manhattan, City of New York, from January 16, 1937 through and including March 1, 1937 at the agreed rental of $70.00 per month. Pаyment demanded and refused.”
Upon the trial the facts were stipulated to be in substance as follows: That one, Sol N. Lusher, the husband of this defendant, signed a lease on June 26, 1936, for the premises involved in this suit for a term сommencing October 1, 1936, and terminating September 30, 1937, at a rental of seventy dollars per month in advanсe for occupancy by Mr. Lusher and his family; that Mr. Lusher entered into the possession of this apartment pursuant to
Upon these undisputed facts the plaintiff seeks to establish a liability against this defendant, the widow of Sol N. Lusher, for the sum сlaimed in the summons.
The plaintiff claims that the facts, here conceded, create a presumption that this defendant became, in legal effect, the assignee of the husband’s lease, and thereby rendered herself liable for rent or for use and occupation during the period she occupied the leasehold premises.
There is no question raised as to the correctness of the amount сlaimed or as to the value of the leased premises. The defendant concededly got the full vаlue of the occupancy of the apartment in question, and apparently was the sole bеneficiary of such occupancy.
She did not, nor did any other person, apply for letters of administration. She, nevertheless, and without such letters of administration, assumed possession of and enjoyed the benefit of the estate which her late husband had in the leased premises.
Meddling with her husband’s estate in this fashiоn without taking out letters of administration makes her liable for the debts of the estate upon the presumрtion that she has, in that fashion, acquired assets belonging to the estate with which to pay the debts óf the estаte.
In Lockwood v. Stockholm (
Another almost parallel case is the case of Noble v. Thayer (
While in the instant case it is clear that the defendant did not pay any rent, she, neverthelеss, had the full benefit of the plaintiff’s property, knowing it did not belong to her, and under those circumstances she cannot be held to accept the benefit of the occupancy without at the same timе assuming the burden of paying the reasonable rent therefor.
The defendant can also be held liable upon the theory urged by the plaintiff to the effect that she created herself substantially an assignee in possession.
In Mann v. Munch Brewery (
By reason of the fact that the defendant approрriated to herself and to her own uses the benefits of this lease and occupied the premises without applying for administration of her late husband’s estate, she must have intended to bind herself personally for the value of the leased premises.
Judgment is awarded in favor of the plaintiff for $105, together with appropriate costs.