The action, is for use and occupation of the dwelling No. 153 West Ninety-third street, New York city. The recovery allowed was for July and August, 1896.' The evidence established that the defendant occupied the premises from September 1, 1895, until the latter part of August, 1896, when she moved away, and a person named Quinn succeeded her as tenant in possession.
The defendant pleaded a general denial of the allegations of the complaint, and depended for her defense oh a written lease of the premises, under seal, made by the plaintiff as landlord to' one Ellen Howland as tenant, dated July 31, 1895, whereby the premises were demised to said Howland for one year from September 1, 1895, “ with privilege of two,” at the monthly rent of $129.16, payable in advance. The defendant testified that Mrs. Howland took possession at the commencement of the lease; that during the first month of the term the latter lost her son, and in consequence of. nervous prostration resulting from the affliction was compelled to move. It does not appear that Mrs. Howland ever returned to the premises.
The defendant was also, in possession September 1, 1895, and remained in actual - possession, and according to the evidence of the plaintiff paid all the rent, excepting that for July and August, 1896. She paid $40 on account of the rent for those months, and promised to pay the balance due.
The plaintiff testified that the defendant paid the May and June rent in advance by a check for $258.32 (being the exact amount thereof), and that the payment of two months’ rent instead of one was made as an accommodation to the plaintiff because she needed the money at the time. The defendant, on the other hand, claimed that the $258.32 was a loan to the plaintiff, and that the $40 credited on the July and August rent was also a loan. The justice decided that these sums were not loans, but payments on the rent, and we are not disposed to question the accuracy of this finding.
The evidence established a clear case of occupation of the plaintiff’s property by the defendant in recognition of the plaintiff’s title as landlord under an agreement to pay $129.16 monthly rent in advance, followed by payments at that rate up to July 1, 1896, with a payment of $40 on account of the rent for July and August, 1896, and a promise to pay the balance claimed.
*116The only question seems to he whether the outstanding lease to Mrs. Howland prevents the maintenance of the action:
In his opinion the justice says: “ The lease between the plaintiff and Ellen Howland seems to have been abandoned, and her possession surrendered, if indeed she ever.had possession. * * *
If, however, the lease should be regarded as not having been surrendered, then the defendant would still be liable, under the evidence, as assignee under the lessee. A party in possession 'is prima facie assignee of the term.” These conclusions seem amply warranted by the evidence.
While the abandonment of the lease to Mrs. Howland and a new hiring by the defendant might perhaps be inferred from the conduct of the parties (Madison Ave. v. Osgood, 44 N. Y. St. Repr. 489, 490), we think there are more substantial reasons for holding that on the evidence the lease continued in force and the defendant became liable as assignee of the term.
In Glover v. Wilson, 2 Barb. 264, it was held that the action of assumpsit, for use and" occupation, will not lie during the existence of an outstanding lease of the same premises, unless upon evidence that the defendant went into- possession under some new agreement of letting and hiring between him and the landlord. The court also held that if the- occupier in that case had been sued' upon the lease there was evidence which would have warranted the jury in finding that he was in possession as assignee of the- term, and consequently liable in covenant for the rent claimed, by virtue of his privity of estate with the lessor. The- reason "is given in Quackenboss v. Clarke, 12 Wend. 555, 556, wherein the court (per Savage, Ch. J.) said: “ The fact of possession is sufficient evidence of an assignment in the first instance. * * •* The fact of an assignment is a transaction between the defendant and the lessee, of which the. plaintiff is not cognizant, but the defendant is. There is no hardship, therefore, in concluding him by his possession, unless he discloses the true state.of his title.” The same was held in Armstrong v. Wheeler,'9 Cow. 88, and Williams v. Woodard, 2 Wend. 487, and these cases were approved and the doctrine established by them reiterated in Bedford v. Terhune, 30 N. Y. 453. See also Frank v. R. R. Co., 7 N. Y. St. Repr. 814, 822.
The defendant did not show that Mrs. Howland had sublet the premises to her, or that she was in possession thereof as her agent; *117nor did she explain in any manner the true state of her title, which under the authorities cited was presumptively that of assignee of the term, in which character she was, therefore, liable to the' plaintiff on the privity of estate.
If the defendant is to be held as assignee, and not as tenant under an independent hiring, it may be that the action should have been in covenant on the sealed lease; but as that specific objection was not taken below it cannot be urged now. The ground taken by the defendant at the trial was that she was not liable to the plaintiff in any form of action, and she cannot take a position now inconsistent with that taken then, when the objection if specifically made might have been obviated by amendment. Bedford v. Terhune, supra; Kafka v. Levensohn, 18 Misc. 202, 205; Farmers’ L. & T. Co. v. Housatonic R. R. Co., 152 N. Y. 251, 254.
The complaint in Bedford v. Terhune, supra, was “ for use and occupation.” There was an outstanding lease to third parties; and while the court decided that an action would not lie in the form presented in the declaration, it held that the defendant could, nevertheless, be held as assignee of the term. In sustaining the recovery the court said (p. 461): “Aside from the principle on which such recovery may be supported, the circumstances of the case justify the court in permitting the plaintiff to take judgment for the rent. 1st. The amount claimed and recovered is the rent due by virtue of the lease. 2nd. The plaintiff, on the proof given by him when he rested, was entitled to recover for use and occupation. And it was the defendants’ proof of the lease that produced the difficulty in the case. Even the grounds of this defense are not set out in the pleadings; he was not surprised; he held in his own hands the evidence which defeated an action for use and occupation, and which authorized a recovery on the lease.”
The judgment must be affirmed, with costs.
Daly, P. J., and Bischoef, J., concur.
Judgment affirmed, with costs.