We think that the Municipal Court erred in dismissing the complaint, for the reason that the evidence was sufficient to show that the defendant held over as a tenant, and'was sufficiently strong to require the court to pass upon the question whether the defendant was not liable for the condition of the premises beyond the ordinary wear and" tear incident to a proper occupation thereof by the tenant under the rule recognized in Baker v. Bart (123 N. Y. 473) and Regan v. Luthy (16 Daly, 413). The judgment should be reversed and a new trial ordered, costs to abide the event. Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.