The proceedings were in the usual form, to obtain possession of premises alleged to be held over by the tenant in possession, after the expiration of his lease. The justice rendered judgment in favor of the landlord. The General Term reversed the proceedings.
Freeman claimed to recover possession of the premises, 119 West 44th street, on the ground that he had leased them to one Thornton, who occupied under the lease, that Ogden was in, as successor of Thornton, the lessee; that the term had expired on the 1st of May, 1863, and that Ogden refused to deliver up the possession. All these allegations were denied by Ogden.
To maintain his case, the landlord called as a witness one Dunning, who testified that he was the agent for the landlord, and that he knew all the parties. That he saw Thornton sign the lease for the premises in question (being a lease dated in July, 1862), leasing the premises from May 1, 1862, to May 1, 1863, from the plaintiff, Freeman. He further testified, that Thornton went into possession of the premises under that agreement. He also testified that on the day on which he was testifying, he had been to the premises in question, had met Ogden there, that he asked him by what authority he claimed possession of the premises, that Ogden replied that he had possession under the tenant Thornton's authority, and was entitled to keep such possession until twelve o'clock of that day.
This appears to me to furnish prima facie evidence, which would have justified the decision of the magistrate, had no further evidence been given. It was shown, that the plaintiff leased the premises to Thornton, that Thornton took possession by virtue of that lease, that the defendant Ogden stated that Thornton was such tenant, that he was in possession under Thornton's authority, and that he was entitled to retain possession until twelve o'clock noon, which was the time when Thornton's lease expired.
On being himself sworn, Ogden denies the statement of Dunning, denied that he rented the premises of any one, *Page 112 claimed that he was and had been owner for two years, and that he had rented the house during that period, and that in July, 1862, Thornton was in possession under a lease from him. That Thornton moved out the day before the trial and surrendered the premises to him.
Dunning, being recalled, testified that Thornton had paid him the rent, under the lease from the plaintiff, and Ogden further testified, that he had brought suit against Thornton to collect the rent under the lease from himself. Ogden testifies, that he had heard that previous proceedings had been taken to dispossess Thornton, but that he had no knowledge on the subject.
Upon Dunning's testimony, the plaintiff was entitled to recover possession of the premises. On Ogden's testimony, he was not so entitled. The witnesses contradicted each other in important particulars. The justice made his own conclusions from the disputed evidence, and I think there was sufficient evidence upon which to base them. I see no error in law, which justified the reversal, and think the judgment of the General Term should be reversed, and that of the justice affirmed. As so long a time has elapsed, no restitution should now be ordered.
WOODRUFF, MASON, GROVER, LOTT, JAMES and MURRAY, J.J., concurred with DANIELS, J., and were for affirmance, on the grounds stated in his opinion.
HUNT, Ch. J., was for reversal of the order of the General Term, and affirmance of the decision of the District Court, on the ground that the latter was final, the evidence being conflicting, as stated in his opinion.
The order of the General Term affirmed, and the restitution of the defendant in error to be carried out. *Page 113