
    Stuard Hirschman, Respondent, v. Edward J. Kuechle, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1916.)
    Landlord and. tenant — actual partial eviction not shown. Services — performance of — implied promise to pay for services. • New trial — when granted — in action for rent — motions and orders.
    Where in an action for rent the undisputed evidence showed that the storage by plaintiff on the premises of certain articles was with the consent of defendant who furnished a key to the building on request, none of the elements of an actual partial eviction are shown.
    In the circumstances there was an implied promise that plaintiff would pay for the use of the part of the building occupied by him.
    Where one performs services for another with his knowledge and consent by reason, of which the other is benefited there is an implied promise to pay' therefor!...... ' '.
    Where in an action for rent it was claimed that plaintiff’-s occupancy of a portion of the leased premises constituted an actual partial eviction and that defendant was entitled to an affirmative judgment for breach of covenant for quiet enjoyment or for use and occupation, the question of the fair and reasonable value of such use is for the jury, and where on motion to dismiss such defense and counterclaim made at the close of plaintiff’s ease defendant asks to go to the jury “upon the facts and upon the issues in the ease,” the granting of the motion to dismiss and denial of plaintiff’s motion is error for which a new trial must be granted upon which the only issue to be tried is the value of the use of that portion of the premises’occupied by plaintiff.
    Whitaker, J., dissents.
    'Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in favor of the plaintiff.
    Raphael Link (Charles E. Hughes, Jr., of counsel), for appellant.
    Gilbert, Lauterstein & Gilbert (Francis Gilbert, of counsel), for respondent.
   Cohalan, J.

The plaintiff herein leased to the defendant a building and a basement therein from month to month at an agreed rental of fifty-five dollars per month. He brought this action to recover for eighteen months’ rent from July 1,1914, to January 1,1916.

Defendant admitted the nonpayment of the rent for the time claimed, but pleaded two defenses and counterclaims, one of which he abandoned at the trial. The defense and. counterclaim tried, was that the defendant claimed that the plaintiff had since December, 1911, used a portion of the demised premises for the storage of an automobile body and seven small boxes or drawers taken out of a desk or bureau. This storage was not disputed by the plaintiff. The automobile body was changed each fall and spring, one body being a limousine and one an open body, and the change made as the seasons required. The defendant claims that this occupancy constituted an actual partial eviction by the plaintiff of a portion of the demised premises, and thereby suspended the payment of the rent during the time of such occupancy, and also that the defendant was entitled to recover an affirmative judgment for a breach of the covenant for quiet enjoyment or for the use and occupation of that portion of the demised premises occupied by plaintiff.

The testimony was taken before a jury, the defendant assuming the burden of sustaining his defense and counterclaim. At the close of the case, the plaintiff moved to dismiss this defense and counterclaim, and the defendant asked leave to go to the jury upon the facts and upon the issues in the case. ’ ’ He made no statement however as to what he claimed to be the issues in the case. Plaintiff’s motion was granted and the defendant’s motion was denied. Judgment was thereupon rendered in favor of plaintiff for the entire amount of .his claim, but whether by the jury upon direction of the court does not appear. The evidence is undisputed that the storage of the articles by the plaintiff during the whole time they were in the demised premises was with the knowledge and consent of the defendant, and that he acquiesced therein without any objection. He frequently and always when asked to do so furnished the key of the building to the plaintiff or to his employees to enable them to enter whenever they wished to change the car body or for other purposes. None of the (dements of an actual partial eviction of any portion of the demised premises was shown, and there was no evidence that the plaintiff ever wrongfully or unlawfully entered the premises or attempted to exercise any rights to any portion of the premises in hostility to those of the defendant. When the plaintiff moved to dismiss the defense and counterclaim of the defendant the situation was this: The defendant had admitted his liability for the rent claimed by plaintiff. He had proven without objection or dispute that the plaintiff had used a portion of the leased premises with defendant’s knowledge and consent, or at least without objection. He had not shown any express agreement or promise to pay for the use of that portion so used by him, but under the circumstances there was an implied promise to make such payment.

If one performs services for another with his knowledge and consent by reason of which the other is benefited there is an implied promise of payment therefor. Sheldon v. Sherman, 42 Barb. 368. The defendant testified that the use of the portion of the premises used by plaintiff was worth from twenty to twenty-five dollars per month, but no proof as to the value of such use was offered by the plaintiff. What was the fair and reasonable value of the use of that-portion of the demised premises occupied by the plaintiff should have been submitted to the jury for their determination. For this reason there must be a new trial and upon such new trial the only issue to be tried is that of the fair and reasonable value of the use of that portion of the leased premises used by the plaintig and for the time it was so occupied.

Judgment reversed, new trial ordered, with thirty dollars costs to appellant to abide the event, and upon such new trial the only issue to be tried is the value of the use of that portion of the premises occupied by the plaintiff. Municipal Ct. Code, § 129, subd. 5.

G-uy, J., concurs; Whitaker, J., dissents.

Judgment reversed, new trial ordered, with costs1 to appellant to abide event.  