majority">Brady, J.

Assumpsit will he at common law for rent upon an express, but not upon an implied promise, (Buller’s N. P. 138; 3 Lev. 150; Featherstonhaugh v. Bradshaw, 1 Wend. 135), even where the use and occupation was by permission of the plaintiff. Lewis v. Wallace, Buller’s N. P. 139. By the Revised Statutes any landlord may recover, in this form of action, a reasonable satisfaction for the use and occupation of any lands or tenements, by any person under any agreement not made by deed; (1 R. S. 478, § 26); and it has been held that this statute applied only to the case of a demise, and when there existed the relation of landlord and tenant, founded on some agreement express or implied. Smith v. Stewart, 6 Johns. R. 36; Osgood v. Dewey, 13 Johns. R. 240; Abeel v. Radcliff, id. 297; Bancroft v. Wardwell, id.. 489; Featherstonhaugh v. Bradshaw, supra; Wood v. Wilcox, 1 Denio, 37.

If the plaintiff had alleged in his complaint that the defendant used and occupied his premises, and had claimed a sum as a reasonable satisfaction therefor, that might possibly have been sufficient to sustain his action, but he repudiates the relation of landlord and tenant, by alleging that the defendant wrongfully *544entered upon and took possession of his lot, and continued in such wrongful use and occupation for the period named. He treats the defendant as a trespasser, and yet claims to recover for ‘ythe wrongful use and occupation of the premises mentioned. He cannot recover for the trespass, because it was committed in another state (Watts' Adm'rs v. Kinney, 23 Wend. 484); or for the use and occupation, because he disclaims any agreement upon which such an action could be based. The defendant is therefore entitled to judgment, but the plaintiff has liberty to amend in ten days, on payment of costs.

Ordered accordingly.

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