Judgment modified on the law and facts by striking therefrom the sum of $85, with interest of $12.62, a total of $97.62, and as modified affirmed, with costs to the appellants. Memorandum: Defendants were prospective buyers of the property in question, and utilized part of the premises for a period of time with the acquiescence of one of the plaintiffs, who was in possession as a tenant by the entirety. Under these circumstances the relationship of landlord and tenant did not arise, and the verdict of the jury was contrary to the law and the facts insofar as it awarded the sum of $85 to plaintiff *951for the “use and occupancy of certain lands and premises” by the defendants. (See Castle v. Armstead, 168 App. Div. 466, affd. 219 N. Y. 615.) All concur. (Appeal from a judgment of Herkimer County Court, for plaintiff committee on an action for use and occupation of realty, and an action for merchandise sold.)
Present — MeCurn, P. J., Kimball, Williams, Bastow and Goldman, JJ.