—This case has twice been tried. On the former trial the complaint was dismissed, on the ground that Healey being a part owner of the property, it was to be presumed that he remained in possessien after the term of one year with his partner, as part owner, and not under the lease, and therefore, remaining in possession did not entitle the plaintiff to treat the lease as renewed for another year. Upon a motion for a new trial on a case and exceptions, ordered to be heard in the first instance at the general term, the exceptions were sustained, and a new trial ordered. 86 Hun, 259; 66 St. Rep. 802. We see no reason for dissenting from the conclusion there arrived at.
There remains only for us to consider the questions as to the proposed amendment of the answer, and the exclusion of the correspondence between the defendant Healey and his firm. The allowance or disallowance of the amendment to the answer was a matter in the discretion of the trial court, and it does not seem to us there was any abuse of such discretion. Whether the defendants were in possession of the property before the least was made was immaterial. They made.the lease, and from that time on, it being a lease of the whole property, they assumed to be, and were in possession under the lease, and that-alone, during the term of one year. The least established the relation of landlord and tenant, and they could not be in possession under any other claim during the term of the lease. They admitted this in their answer, and such admission stood, until after the decision of the general term, and an amendment on the second trial was very properly denied. The correspondence between the defendant Healey and his firm was properly excluded. It was immaterial, and if admitted would not have changed the result. The firm letter to Healey, was, in effect, a notice that, the lessees would not renew the lease, and a statement that they desired to remain in the occupancy of the property a few weeks after the expiration of the term of one year, paying rent for the.actual time the occupancy continued. The notice that the lessees would not renew the lease, even if it had been given to both lessors, would not, of itself, have avoided the legal effect of the holding over beyond the term. Schuyler v. Smith, 51 N. Y. 309 ; Haynes v. Aldrich, 133 id. 287 ; 45 St. Rep. 243. The letter of Healey was a consent that the lessees might hold over, as desired by them, and if he had power to bind the plaintiff by such consent, then the ordinary legal effect of the holding over was avoided, and this action could not be maintained. It is not claimed that the plaintiff had any knowledge of this correspondence. The lease; by its terms, made the'rent payable to éach of the tenants in common, according to their respective interests in the property. Healey was not authorized to act for plaintiff, as his agent or *615otherwise, and the consent could not be operative as plaintiff’s consent in any way. The only theory upon which it can be claimed that this consent oí Healey’s avoided the legal effect of a holding over is that he was a tenant in common with plaintiff, as owner of the property, and, being such tenant in common, he could give his firm the right, outside of the lease, to remain in the occupancy of the property. At the time this consent was given, however, he was, as we have seen, not in possession or occupancy as owner, but merely as tenant under the lease, as a member of his firm. Such was the relation assumed by him and his firm iii taking the lease, and they could not change this relation during the term so as to affect the plaintiff’s rights under the lease, without his knowledge or consent. It cannot be said that Healey, by his consent given before the expiration of the term, could avoid the legal effect of the holding over, when we hold that the legal effect of the holding over was not avoided by reason of Healey’s being ■a member of the firm, lessees, who held over.
We are of the opinion that the judgment should be affirmed, with costs.
All concur.