
    Carl Rehm et al., Resp’ts, v. William S. Weiss, App’lt.
    
      (New York City Court, General Term,
    
    
      Filed May 18, 1894.)
    
    1. Evidence—Conclusions.
    In an action on a lease to recover rent, a witness should not he permitted to give his conclusion that the relation of landlord and tenant existed between the parties, but should be restricted to the conversations which he claims created such relation.
    
      2. Lease—Bent—Defence.
    In an action on a lease, the fact that there is an outstanding lease under seal of the same premises from the plaintiffs to other persons, from and under whom the defendant occupied, is a defense in the absence of proof of assignment, re-entry or surrender of such lease.
    Appeal by defendant from judgment entered on verdict directed for plaintiffs.
    
      Chas. Qoldzicr, for app’lt; Ernest II. Ball, for resp’ts.
   Van Wyck, J.

Plaintiffs sue as landlords under an alleged .express letting of certain premises by them to this defendant at the rent of $250 per month, payable in advance, and seek to recover this rent for the months of September and October, 1893. The only witness examined on behalf of plaintiffs, was plaintiff Koch, and the only proof which he made of such letting was by his answers to the following questions, to each of which defendant objected as leading and calling for a conclusion, his objection overruled and his exception duly noted: Q. State to the jury what premises your firm let to defendant? A. The store floor of 157 Fulton Street. Q. Kindly tell me for what months defendant owes your firm rent? A. Part of September and October 1893. Q. How much did you let the premises for per month? A. $250 per month. Q. How much has defendant paid you on account of those two months? A. $200, in various ways. The defendant’s objections to these questions should have been sustained and the plaintiff witness forced to give his conversations with defendant regarding the transactions which he claimed created the relation of landlord and tenant between his ñrm and the defendant, so as to enable the court, if not contradicted, and the jury, if disputed, to determine whether there was such letting creating such relation. This error might have been cured if the witness had subsequently been forced either on his direct, cross or redirect examination, to give any such conversations; but the record does not disclose such proof, and -moreover it shows that when asked under cross-examination whether he could mention any conversation with, defendant about the renting of these premises, he said the only conversation he ever had with defendant, was that in October he asked defendant for the rent and he replied “I have not got it.” This certainly was too meagre to supply the defect in his proof, regarding the creation and existence of the relation of landlord and tenant, for plaintiffs’ action is upon an express demise to recover the rent reserved, and if it was for use and occupation, it could only be sustained on the ground of a subsisting tenancy between the parties. If there could be any doubt (but there is not) that, under the conditions of the case as above described, the defendant was entitled to his motion to dismiss on the ground that plaintiffs failed to show any hiring on the part of defendant, he should have prevailed on his other ground,- that there was at the time of defendant’s occupancy an outstanding lease under seal of the same premises, from plaintiffs to persons other than defendant, whose possession was from and under such other persons, as their tenant, and not as tenant of plaintiffs, the original landlords in such lease. The plaintiff witness, while under cross, admitted the existence of such lease and the same was then marked in evidence, and by its terms plaintiffs demised these same premises exclusively to such other persons “for the term of three years and one mouth from April 1, 1892,” and yet they sue the defendant, who is not a party to that lease, for rent of these premises,,for September and October, 1893, under an alleged express demise of the same to him by them. The defendant was not a party to or bound by this original lease from plaintiffs to such other persons, and it is not claimed that he was an assignee of such lease. There wa^' no suggestion of a written-assignment, and the interest .of such persons named as lessees in this lease, could only be transferred by writing. 2 Rev. St. § 6. And until a re-entry for condition broken, or a surrender of the lease, such persons were the owners of the term created thereby, and the only remedy which plaintiffs had to recover rent was by action on the covenant against them as lessees or their assignees if duly assigned. There is no proof even of a parol assignment of the lease, or of a surrender of the lease, or that plaintiffs regarded the lease as surrendered. On the contrary, on October 12,1893, they addressed a written notice to the lessees named in the lease “as tenants” and to this defendant as “under tenant,” to remove from and vacate the premises,which notice they and this defendant obeyed by vacating, whereupon plaintiffs “gained possession of the premises by having the door forced .open.” There is no evidence which would support a finding that defendant was the tenant of plaintiffs. Assuming that the proof showed (which it does not) that defendant was in exclusive possession of the premises-during September and until October 12,1893, the presumption is that he entered under the original lessees to the lease, whose term was outstanding and in whom the right of possession was vested, as sub-tenant, for there was no assignment to him of the lease, nor surrender of the same to plaintiffs. There was no privity of contract or estate between plaintiffs and defendant and the complaint should have been dismissed; hence the judgment for plaintiffs and the order denying motion for new trial must be reversed with costs to appellant to abide the event.

McCarthy, J., concurs.  