Willes v. Loomis , 87 N.Y.S. 1086 ( 1904 )

McLennan, P. J.:

The only question raised by the pleadings or upon the trial was as to the value of the rental of the premises described in the complaint and the share of such rental, if any, which should be charged to the defendant Stoel Loomis, and what proportion, if any, should be charged to the defendants Rachael B. Loomis and Jay Loomis.

There were situated upon the premises three buildings and several sheds. One building was used for a paint shop and show room; another for a blacksmith and woodworking shop, underneath which was an oil cellar, and the third building was a dwelling house. At the time of Manley Loomis’ death, the shops were occupied by the •deceased and the defendant Stoel Loomis, who were copartners engaged in carrying on the business of blacksmithing, painting and woodworking. The oil cellar was occupied by the defendant Jay Loomis, and the dwelling house by a tenant of the deceased. After the death of Manley Loomis, the defendant Stoel Loomis continued to carry on the business of blacksmithing, painting and woodworking, and for that purpose occupied the shops upon the premises until the time of the trial, with the exception of the oil cellar, which was used by Jay Loomis until the fall of 1898, and the evidence tends to show that from time to time Jay Loomis used some portion of the shops and sheds for storing his property. The dwelling house was continuously occupied by the same tenant until the time of the trial, and the rent for it was collected either' by Jay Loomis or Rachael Loomis, at least the defendant Stoel Loomis received no part of the same. There was no agreement on the part of Stoel Loomis to pay rent to his cotenants, and no acts on his part were shown which would tend to prove an ouster until a considerable time after the death of Manley Loomis. There was evidence given tending to show that Rachael B. Loomis collected rent for the dwelling house for a portion of the time after her husband’s death, but the amount so collected is not found by the referee, and no charge is made against her for the same. '

The referee found that upon the death of Manley Loomis, the defendant Stoel Loomis entered into possession of the premises in question, and has occupied the same to the exclusion of his cotenants to occupy the same. We think such finding is not supported by the evidence. The evidence does tend to show that at a certain time after the death of Manley Lobmisj the defendant Stoel Loomis did deny the right of his cotenants to occupy the shops or any por-. tian of the premises connected therewith. But there is no evidence that he took such position until a considerable time after the death ’ of his father.

The referee also finds, that the fair rental of the real property described in the complaint is $200 per year, or $1,200 from the time of the death of Manley Loomis until the trial of the action, and the whole of said sum is charged against the defendant Stoel Loomis, when, without contradiction, it appears that he did not occupy the tenant house and did not receive any rent for the same. And as we have seen, no charge for rent óf the tenant house is made against Rachael B. Loomis, although the evidence indicates that she received such rent during a considerable portion of the time.

We think the law applicable to this case is well settled. One tenant in common who receives no money or property from the premises owned in common by himself and others, but who simply occupies them himself, is not liable to his cotenants for the value of the use of the property so occupied. In order to charge such tenant with rental for the premises occupied there must be an agreement to pay rent, an actual ouster or an act amounting to a total denial of the rights of the other cotenants. ( Wood v. Phillips, 43 N. Y. 152 Osborn v. Schenck, 83 id. 201.)

In the case at bar the defendant Stoel W. Loomis should be charged only with the rental value of the property occupied by him from and after the date when he, if at all, commenced to occupy the same in hostility to his cotenants. He should be charged only with rental for such part as he occupied, and not fbr the entire premises, as found by the referee. Equitably the other cotenants should be charged with the rental of any part of the premises which they occupied in like manner, and it was entirely proper that an accounting between the parties should be had in this action, settling their respective interests to the property in question. The defendant Stoel W. Loomis in his answer alleged that his codefendant Jay Loomis had occupied a portion of the premises, and that Rachael B. Loomis had leased certain other portions and collected and appropriated to her own use the rents thereof. The issues thus raised by the answer could not be determined except by its service by Stoel W. Loomis upon his codefendants. This was necessary in order that a full and complete determination of the rights of the parties might be .had. While the judgment must be' reversed, for the reasons above indicated, we think it should be without costs to the appellant, because of his failure to serve a copy of his answer upon the other defendants.

All concurred.

Judgment reversed and new trial ordered upon questions of law and fact, without costs of this appeal to either party.