
    Harlan P. Smith, App’lt, v. Peter Wagner, Resp’t.
    
      (City Court of New York, General Term,
    
    
      Filed June 19, 1893.)
    
    Nonsuit—Use and occupation.
    In an action for use and occupation of premises for the months of March and April, the answer specifically alleged that defendant used and occupied the premises for the month of April at the rent stated, which was not paid. Held, that plaintiff was entitled to a direction in his favor for the rent of that month, and that a non-suit was improperly granted.
    Appeal by plaintiff from judgment of non-suit.
    
      S. V. R. Cooper, for app’lt; Wm. Allen, for resp’t.
   Van Wyck, J.

The action is for unpaid rent for the use and occupation by defendant of plaintiff’s premises. The unpaid rent sued for is seventy-five dollars for each of the months of March and April, 1892. The defendant by his answer specifically alleges 11 that under an agreement made between defendant and plaintiff, the defendant used and occupied said premises for the month of November, 1891, at the rent of seventy-five dollars per month, which was paid,” and for the month of April, 1892, at the same rent, which was not paid. Thus it appears that plaintiff was entitled to a directiou in his favor for seventy-five dollars for the use and occupation of his premises by defendant for the month of April, 1892; hence he should not have been non-suited.

The judgment of non-suit should be reversed for this reason alone, however there are others the discussion of which are not now necessary. Judgment reversed and new trial granted, with costs to appellant to abide the event.

McGtOWN, J., concurs.  