*373By the Court.
Daly, F. J.The action was for use and occupation ; the plaintiff averring that the defendants occupied the premises as his tenants, and the defendants answering that they hired and occupied them as tenants of E. A. Ingraham & Co. Upon the trial it was shown that the plaintiff demised ‘ the premises by a written lease to E. A. Ingraham & Go. for two years and nine months from the 1st of August, 1855, and a series of receipts were produced signed by the plaintiff’s agent, acknowledging the receipt of rent from the defendants for the account of E. A. Ingraham & Co., extending from the 1st of May, 1855, to the 2d of March, 1858. The action was for the quarter’s rent from 1st of February to the 1st of May, 1853. The plaintiff having heard that E. A. Ingraham & Co. had failed, went to the premises and saw the defendanls, who told him that he need not fear or he concerned about the rent—that they intended to occupy the store fur the same business. When this interview took place did not appear, but the defendants continued to occupy the premises thereafter, and paid the rent, the receipts for the rent being written according to their dictation. In March, 1S58, the plaintiff’s agent had a conversation with them about hiring the premises for a year after the 1st of May, 1858, when they said that they ought to have them for the following year, as they were among the plaintiff’s best tenants and had always paid punctually. When the rent was demanded for the last quarter, the defendants said that they had paid money enough on account of E. A. In-graham & Co., and should pay no more; that E. A. Ingraham & Co. owed them largely. Upon this state of facts, the Judge charged the jury substantially, that if the defendants made the agreement with the plaintiff inferable from the above stare of . facts, and carried it out by occupying the premises and paying the rent up to the commencement of the last quarter, the plaintiff receiving the rent from them each quarter, that the defendants were liable to the plaintiffs for the last quarter’s rent; to which instruction the defendants excepted, and the jury found for the plaintiff. The defendants also asked, for a dismissal of the complaint upon the grounds that there was nothing in the case from which the relation "of landlord and tenant or any" contract between the plaintiff and the defendant could be in*374ferred; that the presumption arising from occupation was rebutted by the proof of hiring. The application was denied.
There was sufficient in the case to submit to the jury the question, whether the occupation of the premises by the defendants was under an agreement- made by them with the plaintiff, and though that question was not put to the jury as clearly or as intelligently as it might have been, yet it is apparent from the language used by the Judge that he meant to and did, in effect, leave that question to them.
All that was offered with a view of showing that the defendants occupied as under tenants of E. A. Ingraham & Co., after the failure of that firm, was the receipt given by the plaintiff’s agent under the defendants’ dictation, acknowledging the receipt of rent for account of E. A. Ingraham & Co. " This was a circumstance, hut not a controlling one. It was to bo weighed as against the other evidence, and left to the jury for them to determine what conclusion was to be arrived at from the whole of the evidence taken together, and a question of fact which upon such evidence might have been determined either way, was one in respect to which the finding of a jury is conclusive. The fact that the defendants succeeded to the business of E. A. Ingraham & Co., or carried on a similar business in the same premises after the failure of that firm, that at the outset of their occupation or when the plaintiff was first advised that they meant so to occupy and carry on the same business, they gave him their assurance that he need feel no concern about his rent; the fact that they paid their rent not to E. A. Ingraham & Co., but to the plaintiff as long as they continued to pay it, and that they wanted to hire the store for another year, urging as a reason to induce the plaintiff to let it. to them, that they were among his best tenants and had always paid their rent punctually, were circumstances sufficient to support a finding by the jury that they held under a distinct and independent agreement with the plaintiff,.and not as tenants under a demise from E. A. Ingraham & Co., notwithstanding the form in which the receipts were drawn.
The lease to E. A. Ingraham & Co. embraced the period during which the defendants occupied, and where r, lease is *375outstanding and a party other than the lessee is in possession, the presumption is that he is the assignee of the lease, which may he overcome, however, by showing that he holds under a demise from the lessee. (Armstrong v. Wheeler, 9 Cow., 88; Williams v. Woodward, 2 Wend., 487; Quackenboss v. Clark, 12 Id., 555.) If the party in occupation must he regarded as the assignee of the lease, the landlord cannot sue him for use and occupation, as his liability to the landlord for the rent is founded upon privity of estate, and the action must be upon the lease. .(McFarlan v. Watson, 3 Comst., 286.) If there was nothing in the cáse hut the occupation of the premises by the defendants, they would be regarded as assignees of the outstanding term demised by the plaintiff to E. A. Ingraham & Co., and the plaintiff could not sustain the present action for use and occupation. But a surrender of the lease with the consent of the landlord before the expiration of the term may he inferred from circumstances, and a lease by the landlord to a third party with the consent of the former tenant, operates as a surrender of the previous lease and estops the landlord from-claiming any rent thereafter under that lease. (Schirffiin v. Carpenter, 15 Wend., 400; Smith v. Niver, 2 Barb., 180.) In this case there was evidence to warrant the conclusion of a change of tenancy with the consent of all parties, and the acceptance of the defendants by the plaintiff as original tenants under an agreement by them to-payrent to the plaintiff for the use and occupation of the premises, which, under the authorities, was sufficient to entitle him to maintain this action. (Matthews v. Sloan, S Taunt., 270 ; Drury Lane Company v. Chapman, 1 Carr. & Kirwan, 14.)
The judgment should be affirmed.
Hilton, J.—I concur.