14 Second Avenue Realty Corp. v. Anne Steven Corp.

Judgment entered on November 30, 1961 and order entered August 31, 1961, unanimously modified, on the law, on the facts and in the exercise of discretion, to the extent of granting judgment in favor of the plaintiff and against defendants for damages in the sum of $2,366.67 for the period beginning February 8, 1961 and ending June 30, 1961 at the rate of $500 per month, and, the judgment and order as so modified, affirmed, without costs. The action is in form one to recover for the use and occupation of premises known as 14 Second Avenue, Borough of Manhattan, City of New York, and for counsel fees consequent on the occupation of the premises by the defendants during the period September 1, 1960 to June 30, 1961. There was never a landlord and tenant relation between the parties; therefore, no basis for a recovery predicated on use and occupation is present. (Castle v. Armstead, 168 App. Div. 466, affd. 219 N. Y. 615; see, also, 49 A. L. R. 2d 1169.) Defendants, however, concede plaintiff is entitled to damages for the period February 8, 1961 to June 30, 1961 during which defendants were in possession by force of the stay granted by the Appellate Term. Plaintiff is not entitled to counsel fees as an item of damage. (Cf. de Raismes v. Thomas, 260 N. Y. 272.) In the circumstances the complaint is amended to conform to the proof and to the concession. Judgment is granted accordingly. Settle order on notice. Concur — Botein, P. J., Breitel, Rabin, McNally and Bergan, JJ.