There is no ground for our disturbing this judgment. The plaintiffs claim for rent was based upon the theory that the lease continued from October 1, 1904, to October 1, 1905, through the tenant’s remaining in possession after October 1, 1904. It appeared, .however, from testimony which the justice was well authorized to accept, that, in June, 1903, the parties had orally agreed that the tenancy should end July 1, 1905. When this agreement was made, thé defendant was in possession as a tenant whose term was to endure until October 1, 1903; and proof of the oral lease from that date to July 1, 190.5, could, we may assume, have been assailed as in contravention of the Statute of Frauds; but all the evidence upon the subject was received without objection, except that, in one instance, after the matter had been fully testified to, an objection was made to a responsive answer upon the ground that oral proof of the lease was not competent. At no time was the court asked to make any actual ruling in accordance with the claim, now asserted, that the oral lease was void; and thus the plaintiff, by acquiescence at the trial, waived any available objection to the contract and the mode of proof. Crane v. Powell, 139 N. Y. 379.
The judgment should be affirmed with, costs.
Judgment reversed and new trial granted with costs to appellant to abide event.