The trial court apparently misconceived the law as well as the theory upon which the case was tried. Landlord relied on the agreement of November 22, 1948, with the tenant’s predecessor, King & King, Inc., which agreement purported to fix a reasonable rental for the premises. The decision, however, was predicated upon a ground not urged by either side, namely, that the parties were not authorized to fix *898the rent by lease or other agreement because the tenants herein were not in possession of the demised premises prior to December 6, 1948, on which date they executed the existing lease.
Since the landlord did not attempt to sustain the rental on the basis of any agreement with the present tenants, it is patent that the decision rests upon an erroneous premise. The basic issue in the case is whether, under the circumstances disclosed, the successor tenants are bound by the alleged reasonable rental as fixed in the agreement with the former tenant. Failure of the court to consider this question necessitates a new trial. Additionally, landlord’s offer to show that the rent paid was neither unjust nor unreasonable was improperly rejected. Proof of this character was, in any event, admissible to controvert the counterclaim for overpayment of rent. (Sugrue v. Liftin [App. Term, 2d Dept.], N. Y. L. J., Jan. 30, 1950, p. 365, col. 7; Rose v. Williams Auctions Sales Corp., 79 N. Y. S. 2d 32.)
The final order and judgment should be reversed on the law and new trial granted, with $30 costs to landlord to abide the event.