I am unable to see how this judgment 'can be sustained. The plaintiffs must assume and sustain the burden of proving every .fact necessary to a recovery. This they have not done. All they show is that, on the day on which their term was to commence some one else was in physical occupation of the demised premises, but it is not shown by what title the person in possession held or claimed to hold. It was not incumbent upon the lessor to put the lessees into actual possession. Gardner v. Keteltas, 3 Hill, 330.
All that was incumbent upon the landlord was to put the tenant into legal possession, that is, to see to it that no one else had a superior right of possession, so that no obstacle would be interposed to the tenant’s obtaining actual possession. For all that appears in this case the persons in possession of the property on the date the term of the lease was to commence were holding over after the expiration of some lease or letting, and, therefore, mere strangers and liable to summary dispossession. This case differs materially from Goerl v. Damrauer, 21 Misc. Rep. 555, in that there the parties in possession were shown to be holding under a monthly tenancy, and the landlord had failed to give them the statutory notice to terminate their tenancy. Thus, by the landlord’s own act there was in possession on the day the term was to commence a tenant lawfully in possession holding by a title superior to the new lessees. In other words, the landlord, by omitting to give a notice which he alone could give, disabled himself from putting his tenant into legal possession, and prevented that tenant from taking actual possession. Nothing of that kind is shown in this case. The deposit was made to cover all the covenants in the lease and it cannot be determined yet nor until the end of the term what claim the landlord may have against the fund.
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Davis, J., concurs.