
    Meyer Foster et al., Respondents, v. Edmund T. Oldham, as Assignee, Appellant.
    (New York Common Pleas—Additional General Term,
    May, 1894.)
    Plaintiffs leased certain premises to one Pearce, which were thereafter occupied by the firm of Pearce & Co., which firm subsequently made a general assignment for the benefit of creditors to the defendant. After the defendant had been in possession for about four months, for which , occupation he had promised to pay, plaintiffs commenced summary proceedings for nonpayment of rent against Pearce, tenant, and defendant and another, assignees, undertenants, and recovered therein. In an action for the rent during the time the assignee remained in possession, held, that even if the final order in the summary proceeding was an adjudication that defendant was an undertenant, it had no bearing upon the question involved in the case at bar, as the defendant was liable upon his promise to pay the rent.
    When a person other than the lessee is shown to be in possession of leasehold premises, it will be presumed that the .lease has been assigned to him.
    [Reargument of an appeal by the defendant froln a judgment of the District Court in the city of Hew York for the seventh judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff.
    The decision in the former appeal is reported in 4 Misc. [Rep. 201.
    Action for rent. The answer was a general denial.
    The opinion states the facts so far as they are material.
    
      Wilber <& OldKmn, for appellant.
    
      Sumner IB. Stiles, for respondents.
   Giegerich, J.

This is a reargument of the appeal taken herein by the defendant. It is now claimed by the appellant for the first time that the final order granted by default in summary proceedings instituted by the respondents against John Pearce, Jr., tenant, and Henry M. Leverick and Edward T. Oldham, assignees, undertenants, to recover possession of the'premises in question, is an adjudication binding upon the respondents, which creates an estoppel on the theory that the appellant was an undertenant. Assuming that the final order in such summary proceedings was an adjudication that the appéllant was an undertenant, still that would have no bearing upon the decision of this appeal, as the appellant promised to pay the rent, which was an independent agreement, made upon sufficient consideration, and was binding upon him.

Appellant also claims that a lease was outstanding in another tenant for the very period rent is demanded. This claim is based upon the fact that the lease of the premises in question was made to one John Pearce, Jr., and as Pearce & Co., a firm, occupied the premises at the time of their assignment to the appellant for the benefit of creditors, and no assignment of the lease by John Pearce, Jr., having been proven, the appellant argues that the lease was in John Pearce, Jr., and that he alone is liable for the rent. The authorities, however, do not favor this contention. When a person other than the lessee is shown to be in possession of leasehold premises, the law presumes that the lease has been assigned to him. Bedford v. Terhune, 30 N. Y. 453; Frank v. N. Y., L. E. & W. R. R. Co., 122 id. 197, 219, and cases cited. There was, therefore, a direct privity of, estate between the respondents and the general assignee of the assignees of the lease.

The justice determined upon a conflict of evidence that the appellant occupied the premises for the months of July, August, September and October, 1891, for which period respondents demanded rent, and we think such determination of that question of fact is amply supported by the evidence. The fact that the appellant acknowledged his liability, and promised to pay the rent, only tends to make a stronger case against him.

This disposes of all the questions raised by the appellant. We have re-examined the record, and, after again carefully considering the evidence, we are satisfied that the decision of the justice was in all respects correct.

The judgment should be affirmed, with costs.

Bischoff, J., concurs.

Judgment affirmed, with costs.  