will of J. Monroe Taylor, deceased. Plaintiff moves for a new trial on a case and exceptions ordered to be heard at general term in the first instance. Granted.
In April, 1886, Jefferson M. Levy and Henry L. Clinton were the owners of the fee of Nos. 39 and 41 Cortland street, and remained so until 1887, when they conveyed it to J. Monroe Taylor, who remained the owner until May, 1892, when he died, leaving a last will and testament, which was duly probated June 7, 1892, and letters testamentary thereon were issued to the defendants. On April 24, 1886, Levy and Clinton leased the 2d, 3d, 4th, and 5th stories of the premises to the plaintiff for three years from May 1, 1886, for a yearly rental of 83,800, payable in advance,—8316.66 on the 1st day of every month. The lease contained a covenant that it might be renewed for two years from May 1, 1889, for a yearly rental of 84,000, payable monthly in advance,—8333.33 on the 1st day of every month. May 1, 1886, the plaintiff, as lessee, entered into possession of the leased premises, and occupied them as an hotel. When the premises were conveyed to Taylor, he took an assignment of the lease from the lessors, and the plaintiff attorned to him. Taylor, defendants’ testator, renewed the lease for two years, at the stipulated rent of 84,000, which term ended May 1, 1891. The plaintiff continued to use the premises for the purpose of an hotel until July 16, 1891, when he was forcibly evicted by the defendants’ testator. The defendants concede that the rent was paid to June 1, 1891, and that September 11, 1891, Taylor, the lessor, began an action in the city court of Brooklyn to recover 8500, the rent from June 1, 1891, to July 16, 1891, at the rate of 84,000 per year, and 8106.40 Croton water tax, which, it is alleged, the lessee agreed to pay. .September 30, 1891, the plaintiff herein paid the rent to July 16th, together with the costs of the action, which was discontinued. This action was begun August 11, 1891, to recover damages sustained by the eviction. The defendant answered, and after his death the action was revived, and continued against these defendants, his executors.
Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.Benjamin Scharps, for appellant.
De Witt C. Brown, for respondents.
The right by which the. plaintiff claims to have occupied the premises is not set forth in his complaint, but it appears by the answer and the concessions on the trial that he was a lessee. By these concessions it appears that his lease expired on the 1st day of May, 1891, and that he paid, and Taylor accepted, $333.33, the rent for that month, but the circumstances under which the payment was made are not disclosed by the concessions nor by the evidence. The landlord having permitted the tenant to occupy the leased premises after the expiration of the term, and having accepted a month’s rent from him at the rate stipulated in the lease, a presumption is raised that the lease had been renewed for another year. Clarke v. Howland, 85 N. Y. 204 ; Schuyler v. Smith, 51 N. Y. 309 ; Laughran v. Smith, 75 N. Y. 205 ; 4 Kent, Comm. (13th Ed.) 114, note x; Wood, Landl. & Ten. 76.
The complaint in the action for rent brought in the city court of Brooklyn contains allegations which, if they had been established, would have constituted a defense to this action, provided the eviction was effected at the proper time and in the proper manner; but that complaint, though introduced in evidence, is no evidence of the truth of the allegations therein contained. The rent for