(dissenting.) This case arises out of a claim presented by the plaintiff for rent, against the estate of John Mowatt, deceased, of premises No. 154 West Thirty-Second street in the city of New York, which was disputed by the executors of said Mowatt, and, a reference having been ordered, the referee reported against the claim, upon the ground that at the time the lease in question was entered into between the lessor, one Morris, and the lessee, Mowatt, it was intended that said premises should be used as a house of prostitution; and the question presented upon this appeal is whether there is evidence sufficient to sustain this finding of the referee. It appears to be undisputed from the evidence that in 1888, 1889, and 1890 one Clark and his wife occupied the premises, and kept them as a house of prostitution; and that, on the 8th of April, 1889, Morris made a contract with the then owner of the house for the purchase of the same, which contract provided for the passing of the title on the 27th. of April, 1889, and was made subject to a lease of said premises, expiring on the 1st of May, 1889. On the 26th of April, 1889, Morris leased the premises in question to said Mowatt, by which lease it was expressly provided that the house should be used as a dwelling house only, and that the lessee should obey all lawful orders of the health department and all other departments of the city government. There is no evidence that Morris knew who the lessee mentioned in the lease expiring on the 1st of May, 1889, was. It further appears that subsequent to the lease by Morris the premises continued to be occupied by Clark and his wdfe, and used as a house of prostitution, and Morris visited the premises during this time. We have searched the record in vain for any satisfactory evidence going to show that at the time of the making of the lease Morris knew that there was any connection between the lessee, Mowatt, and the Clarks. It is true that Mrs. Clark swears that in a conversation with Mr. Werner, who was the attorney of Morris for the purpose of drawing up the papers, he said he could not make out a lease to Clark, or he would be held liable if he rented the place for that purpose; but this by no means necessarily proves that the lease was made to Mowatt as a cover for the occupation of the Clarks. It is true that Mrs. Clark swore that Morris agreed to give them a lease for five or ten years; but the evidence show that Morris refused to execute any lease to the Clar.ks, although he did execute a lease to Mowatt; and, as" has already been said, there is no evidence whatever that Morris knew anything about the connection between Mowatt and the Clarks. - Morris’ knowledge of the occupation of the premises subsequent to the execution of the lease could not invalidate the same if there is no evidence of an illegal intention at the time of the making of the lease. Great stress is laid by *368the counsel for the defendant upon the fact that Morris was not examined! as a witness, or called upon to testify. But until it had been shown, with a reasonable degree of conclusiveness that Morris, in the execution of the lease to Mowatt, was actuated by an unlawful intent, it is difficult to see what he had to explain, and the case seems to be absolutely barren of evidence from which such a conclusion may be arrived at. It would appear that the referee was controlled in his decision by the fact that Morris knew that his house had been occupied as a house of prostitution prior to his letting to Mowatt and subsequent thereto, and that, therefore, it must have been let with the intent that it should be so. kept. But we do not think that this conclusion is one which must necessarily obtain; and a person cannot be deprived of his property upon, mere inference, when the evidence from which such inference is drawn-is susceptible of a different conclusion. The evidence of Mrs. Clark in. many important particulars is directly contradicted by that of Mr. Werner, and certainly the occupation in which she was engaged was not. such as would naturally add to her credit, notwithstanding her claims of reformation. Upon evidence of this character we do not think that a person should be deprived of his property. The judgment should be reversed, and a new trial had before a new referee, to be appointed by this court, to determine the question at issue between the parties, with costs to plaintiff to abide the final result.