[After stating the facts as above.]—The plaintiff contends that the relation of landlord and tenant under a lease for a year at the rate of $1,200 per annum, from April 26th, 1881, is created by his letter to defendant of April 18th, under the authority of Despard v. Walbridge, 15 N. Y. 374. It was there held, that where a party who was the owner by assignment from the original lessee of the residue of an unexpired term of three years, gave notice to a person who was a subtenant holding under such original lessee, and whose term was then expiring, that in case such person should hold over the plaintiff would consider the premises to be taken for the term of one year at a fixed rent, and such person made no reply but held over and continued to occupy the premises; this was *274a virtual assent to the terms prescribed in the notice and created a privity of contract between the parties.
The facts of this case do not bring it within the rule thus established. Defendant was not a tenant or subtenant of the premises when plaintiff gave him the notice in proof, nor had he been since May, 1880. His property was in the premises, and had been used by his successors as his bailees under the agreement on which he left it there. This could not be construed into a possession of any part of the premises by defendant. This was correctly understood by plaintiff ; for, in his letter to defendant of March 24th, 1881, he says, “Last August I rented of Trinity Church the offices formerly occupied by you. The safes and desks left here have not been in my way until recently. I have spoken to Trinity Church to have them removed, and they refer me to you. Please have the safes, &c., removed by April 1st, as they are in the way of my renting offices to tenants. If they are not removed by that time, I shall charge you a storage upon them of twenty dollars per month, as they occupy space I can easily rent for that amount.” And in his letter of April 21st, 1881, in answer to defendant’s demand for the safes, plaintiff says : “ As they were loft with me to be returned when called for, I am ready to deliver constructive possession of the same.”
The justice was right in holding that defendant was not in possession of any part of the premises, and that there was no holding over under the notice of plaintiff, and no contract to pay the rent here demanded could be implied.
The judgment should be affirmed.
Yan Hoesen, J., concurred.
Judgment affirmed.