The plaintiffs sue for one month’s rent of certain premises occupied by the defendant, and for water rents paid by the plaintiffs for which, under his lease, the defendant was liable.. The defendant admits liability for the water rents, and for one-half the month’s rent. As to the other half, he shows that, under his lease, the monthly rent was payable on the first day of the month; that the plaintiffs had agreed to sell the premises on the fifteenth of the month, and that, in the contract of sale, the plaintiffs had agreed with their vendee to apportion the month’s rent, so that, upon the completion of the sale, the plaintiffs would be obliged to pay or allow the purchaser one-half the month’s rent, or seventy-nine dollars and sixteen cents. The defendant, instead of paying his landlord the whole month’s rent on the first of the month when it was due, •paid him half, and paid the other half to the purchaser. This he did, without any request or consent on the part of his landlord, who has never acquiesced therein. Clearly this payment, .by the defendant to the purchaser, is no defense to the landlords’ action. The whole rent was due and payable on the first day of the month, and the landlord was then entitled to receive it. Ho voluntary payment to any third person, without the landlords’ direction or consent, could satisfy the landlords’ claim. In allowing this payment as a partial defense, the justice erred.
The defendant counterclaimed for the sum of $600, alleged to be due him for commissions upon the sale of the property. The evidence upon this point was conflicting, and we cannot say that it so clearly preponderated in plaintiffs’ favor as to require us to reverse the finding of the justice in favor of the defendant.
The judgment must be reversed, with costs, unless the defendant stipulate to reduce the judgment by the sum of eighty-two dollars and thirty-five cents, in which event it is affirmed, without costs.
Present: Truax, P. J., Scott and Dugro, JJ.
Judgment reversed, with costs, unless defendant stipulates to reduce judgment by sum of eighty-two dollars and thirty-five cents, in which event affirmed, without costs.