
    William P. O’Connor, Agent of the Sisters of Charity of St. Vincent De Paul, Resp’t, v. William Schmitz, Impleaded, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    1. Summary proceedings—Sub-tenant.
    In proceedings to remove a tenant and under-tenant as holding over after expiration of the lease, the alleged under-tenant answered that he was the tenant and had paid the rent. The evidence showed that he was the tenant of the lessee and that the lease had expired. Held, that a verdict in favor of defendant was against the weight of evidence and was properly reversed by the county court.
    2. Justice’s Court—Appeal.
    The fact that the defeated party in justice’s court paid the costs and serve 1 notice of appeal before the entry of the judgment does not render the appeal ineffectual.
    Appeal from order of the county court of Westchester county, reversing judgment in favor of defendant entered upon verdict of a jury in justice’s court.
    Summary proceedings to remove Hugh Lunny, as tenant, and William Schmitz, as under-tenant, as holding over after expiration of lease of the premises to Hugh Lunny.
    Defendant Schmitz answered, setting up that he was the tenant and had paid rent to the petitioners.
    
      Seward Baker (Edward Blankman, of counsel), for app’lt; Joseph K Owens, for resp’t.
   Pratt, J.

There is no merit in this appeal. The defendant Schmitz was an under-tenant of one Hugh Lunny, who held a written lease of certain premises in Westchester

The lease had expired and the plaintiff commenced these proceedings to eject the tenant who was holding over. A trial was held on the 16th of May, 1890, and a verdict rendered for the defendant.

Judgment and verdict entered in the justice’s docket on the 5th of July, 1890, and plaintiff appealed and the judgment was reversed in the county court.

The fact that plaintiff paid the costs and served a notice of appeal before the entry of judgment had no legal effect and the judgment in the county court was right.

The defendant was the tenant of Lunny and not the tenant of the plaintiff, and Lunny’s lease had expired.

These facts appeared before the jury in the justices’ court, and the verdict was against the evidence.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  