I think the judgment of the trial court was right, and that in any event this is not a case in which the judgment should *163be reversed and a judgment in favor of the plaintiffs substituted therefor.
The action is not for use and occupation, but for a breach of the provisions of the lease, it being alleged that the defendant failed to pay the taxes as agreed therein, and that the landlords were obliged to pay them; and the action is to reimburse them therefor. It was held by the Appellate Term, on an appeal from an order granting judgment for plaintiffs on the pleadings in a former action for the same relief, which was subsequently discontinued, that if the defendant proved the allegations of his answer to the effect that notice was given by the landlords terminating the tenancy at will, and that this was followed by dispossess proceedings which resulted in a final order in favor of the landlords, upon which, however, no warrant was issued, and that the defendant held over thereafter, the lease ceased to be binding and he was under no obligation thereunder to pay the taxes and would be liable therefor only by virtue of some new agreement, express or implied. (Hinton v. Bogart, 79 Misc. Rep. 418.) It is conceded in the prevailing opinions that the defendant is not liable on the lease, and that his only liability is for use and occupation; but it is contended therein that the rent reserved by the former lease and the obligation of the tenant to pay taxes thereunder are evidence of the value of the use and occupation. Undoubtedly, the lease would be competent evidence of the value of the use and occupation, if that were an issue in the case, hut it would not be conclusive evidence on that point, and defendant might well claim that the quarterly payments he made for use and occupation “without prejudice” constituted the fair and reasonable value of his use and occupation. But, as I view it, there was no issue with respect to the value of the use and occupation presented by the pleadings or litigated upon the trial.
In the circumstances, therefore, I am of opinion that the plaintiffs are not entitled to recover in this action, which was brought and tried upon the theory that the defendant was liable for the payment of the taxes by virtue of the provisions of the lease.
I, therefore, vote to affirm the judgment.
Judgment reversed and judgment ordered for plaintiffs as directed in opinion, with costs. Order to be settled on notice.