Opinion by
Mr. Justice Sterrett:After considering the exceptions filed by plaintiff below to the report of the referee, the learned judge of the common pleas in the concluding paragraph of his opinion says: “It follows that the plaintiff’s second conclusion of law should have been affirmed, and defendant’s fourth conclusion of law denied, and that, upon the facts found by the referee, the plaintiff is entitled to recover. The corresponding exceptions of plaintiff are accordingly sustained, and the judgment of the referee reversed.” And thereupon he directed judgment to be entered in favor of plaintiff below for $221.76.
The plaintiff’s second conclusion of law, referred to above, was “that the temporary occupancy, testified to by plaintiff’s witnesses, is not such an occupancy as would create an eviction, or a surrender of the term, unless there was an acceptance by the plaintiff.”
Defendant’s fourth conclusion was “that the plaintiff cannot recover.”
The learned referee refused the former and affirmed the latter, and he accordingly directed judgment in favor of defendant below; but, upon the same facts found by the referee, the learned judge reversed these legal conclusions, and judgment was accordingly entered in favor of plaintiff below, as above stated. These rulings are the subjects of complaint in the several assignments of error respectively.
It will be observed that the referee’s findings of fact are accepted as substantially correct. It is only as to the legal conclusions drawn therefrom that the court overruled the referee on the controlling questions in the case.
Among other things, the referee found, in substance, that in November, 1879, plaintiff in error leased from plaintiff below two second-story front rooms on Broadway, New York, for five months, from 1st of December following, at $55 per month,, took possession of the same accordingly and paid the rent until February 1, following; that in the early part of February plaintiff below took possession of the rooms, removed locks, signs, and goods left there by plaintiff in error, and thence until the expiration of the lease used the rooms for storing trunks; that, at the *305time he thus re-entered the premises, plaintiff in error was in possession of the same as tenant under said lease, although not personally present, and had goods and chattels at the same; that-defendant in error broke, removed, or opened the plaintiff in error’s lock on the door of the demised premises, took down his signs, re-entered and took possession of the premises, and used the same for his own purposes in his own business; that at the time he so re-entered, the demised premises were not vacant, nor had the lease expired, and from the time he so re-entered in the early part- of February, 1880, until May 1 of that year, he continued in possession; and during that time plaintiff in error was not in possession of any part of the demised premises.
Having found the foregoing and other corroborating facts, the referee rightly concluded, as matter of law, that, plaintiff below having re-entered and taken possession of the demised premises, and used the same for his purposes without the consent of plaintiff in error, the latter was evicted, and, therefore, relieved from further payment. The facts found by the referee clearly warranted each of the four conclusions of law claimed by defendant below, the last of which was “that the plaintiff cannot recover.”
The first conclusion of law submitted by plaintiff below was “that the lease in evidence was for an entire term of five months, and defendant is liable for the rent unless there was an eviction or surrender of the term and an acceptance by plaintiff.”
The second as before stated was “that the temporary occupancy, testified to by plaintiff’s witnesses, is not such an occupancy as would create an eviction or a surrender of the term, unless there was an acceptance by plaintiff.” This was rightly refused for the reason that it was not warranted by the testimony, nor by the referee’s findings of fact.
As to all the controlling points in the case, the findings of the referee, as well as his conclusions of law, are substantially correct, and, in accordance with his report, judgment should have been entered in favor of defendant below.
Judgment reversed, and now judgment in favoi* of defendant and against plaintiff below.