In June, 1856, the plaintiff leased to one Graves the premises No. 365 Greenwich street, in this city, for the term of 21 months from the first of August following, at the yearly rent of $500, payable quarterly. On September 4, 1857, Graves, being then in possession under the lease, sold to one Baldwin the machinery and fixtures upon the premises, and on the next day executed and delivered to Howell Hop-pock a general assignment of all his property for the benefit of his creditors. After the sale, Baldwin went upon the premises, and used the machinery until about the 1st of October thereafter, when he sold it to the defendants, who also continued its use in the same manner until the 1st of November following, on which day a quarter’s rent became due. This was demanded of the defendants, and payment being refused, the plaintiff brought *316this action to recover it from them as assignees of the lease. The defendants denied being such assignees, and set up that the lease passed under the assignment to Hoppock
A trial was had before Judge Beady, without a jury, who found, in addition to the facts stated, “ that no assignment of the lease, or of any interest therein, or of any term therein, was ever made to Baldwin or to the defendants, or either of them.” Judgment was given for the defendants. No exception was taken to the finding of the judge, and upon this appeal by the plaintiff we are only called upon to determine whether, on the facts stated, the defendants are liable.
In actions like this the rule of law is well settled, that the plaintiff establishes prima facie his right to recover by showing that the defendant was in possession of the premises at the time the rent became due, and the presumption of law then attaches that he was in as assignee of the original lessee. Armstrong v. Wheeler, 9 Cowen, 88; Williams v. Woodward, 2 Wend. 487; Provost v. Calder, 2 Wend. 518.
But this presumption may be rebutted by the defendant showing the real nature of his occupation. He may prove that he is not assignee, or that he is under tenant, or occupying by permission of the lessee, or has some lesser estate, or no estate or interest whatever in the lease, and thus exonerate himself from liability for rent to the original lessor. 2 Phillipps on Evid. (7 London ed.,) 151; Holford v. Hatch, 1 Doug. 183; Taylor’s Land. & Ten. (1st ed.) 221; Durando v. Wyman, 2 Sand. S. C. 597; Quackenboss v. Clarke, 12 Wend. 555. And unless it appeárs, presumptively or otherwise, that the defendant possesses the entire estate of the original lessee in the term demised, no recovery can be had. Holford v. Hatch, supra.
Here it was conclusively shown by the evidence at the trial, and so found by the judge, that the defendants never had any interest whatever in the lease; and it would seem the most that could be said of them is, that they occupied the premises for the period of one month without objection from any one. This may, and probably did, make them liable for such use and occu*317pation to the lessee, or his assignee; but it created neither privity of contract nor estate between them and the plaintiff. Their having so occupied did not estop them from denying that they were assignees, and showing the nature of their possession. But Avere it otherwise, Avhich, hoivever, I do not concede, it would be enough to say that the evidence upon this point Avas admitted at the trial without objection, and it is now too late to raise any such question.
In the language of Ch. J. Savage, in Quackenboss v. Clarke, (supra): “ The liability of the assignee rests upon his estate, and it is clear that when it is shown that no estate is vested in the defendant, it follows that he is not liable as assignee.”
Judgment affirmed.