
    Grace R. Ives, Respondent, v. Peter Quinn, Appellant.
    (New York Common Pleas—General Term,
    February, 1894.)
    In an action for rent of a portion of certain premises, it appeared that plaintiff's landlord, claiming that her lease expired May first, rented the premises to defendant, Avho moved into a part of them, but plaintiff refused to go out. The landlord then tried to make an arrangement between them, and defendant Avas allowed to have the use of a portion of the premises, hut the evidence did not show that any agreement Avas, made between the parties as to rent. The leases to plaintiff and defendant Avere offered in evidence, hut were excluded. Held, error; that the most that could he inferred from the circumstances Avas that defendant occupied a portion of the premises, and if plaintiff was lawfully in possession the court might he justified in finding that he should pay something for use and occupation; it was, therefore, necessary to have both leases before the court to determine the rights of the parties to the premises.
    Plaintiff and another witness, neither of whom were shown to be experts, or to have had experience in renting premises, were allowed to testify as to the value of the premises occupied by defendant. Held,, error.
    Appeal from a judgment of the District Court of the city of Hew York for the first judicial district.
    
      Philip Carpenter, for appellant.
    
      Wakeman Campbell, for respondent.
   Bookstaver, J.

This action for rent was brought simultaneously with four actions for trespass, one of which was against the defendant in this action. All of the actions except this one were tried together, and resulted in judgments in favor of the present respondent. This action also resulted in a judgment in her favor. Appeals from all these judgments were taken to this court, the trespass actions being heard immediately before the appeal in this action. From the evidence it appears that the plaintiff had been in possession of a part of the top loft of No. 12 Yesey street for some time prior to May 1,1893, at which time her superior landlord claimed her lease expired, and let the premises in question to the defendant. The plaintiff, however, claimed that her lease did not expire at that time and refused to go out. Defendant moved into a part of the premises, and thereupon a controversy arose between the plaintiff, the superior landlord and the defendant Quinn as to the possession. On or about the fifteenth of May an agreement of some kind was entered into between the superior landlord and the plaintiff, whereby she continued in possession of the premises, or that part occupied by her, until the first of June of that year. The gist of this action against defendant is for the rent of those premises for the month of May. No agreement is shown by the evidence to have been entered into between the plaintiff and the defendant. The only evidence on that point on plaintiff’s behalf was the testimony of Mr. Abercrombie, which is as follows: “ Mr. Stewart, in the presence of Mr. Quinn, wanted me to talk to Mr. Quinn about Miss Ives occupying a certain portion of the premises and getting Mr. Quinn’s consent that she should occupy the premises, and that he, Mr. Quinn, would let her have them if she would pay ten dollars or fifteen dollars. I said no, that we had nothing to do with Mr. Quinn, and that she was the rightful possessor of the premises and would have nothing to do with him, but if he wanted to occupy part of the premises Miss Ives would let him in. Mr. Stewart said: £ Let us fix up an arrangement.’ As near as I can recollect he said that. We then went up to Miss Ives’ office in the front part of the room. * * * Before-going into the office, there, at the door, Mr. Stewart told me what part of the premises Mr. Quinn wanted to occupy. * * * Mr. Quinn wants the center portion; if you let him have the center room and take away your cutter and two or three other machines called stitchers, he wants to occupy that and to bring in another ruling machine.’ * * * I told him that if necessary we would give Mr. Quinn two-thirds of the left side of the room and move the stitchers and cutting machines up towards the front.” The case does not show that Mr. Stewart had any authority to bind Mr. Quinn; he positively denies that he made any arrangement with Mr. Abercrombie about rent, and Mr. Quinn positively denies that, he made any such agreement or authorized anybody to make any such arrangement for him. This being all the evidence touching-any agreement, we do not think the court was justified in finding there was any agreement of any kind to pay rent. The utmost that could be inferred from this w;as that Mr. Quinn occupied a portion of the premises, and if Miss Ives was lawfully in possession of the same the court might have been justified possibly in finding that he should pay her something for such use and occupation. But even that depended upon whether Miss Ives was a tenant and there was an agreement, express or implied, that Quinn should come in as a tenant under her. Probably this could be determined by referring to the agreement made between the superior landlord and Miss Ives, and ordinarily we would have a right to refer- to it, as the same is now on file in this court; but under the circumstances of this case we cannot, as it was offered in evidence by the defendant and excluded, thus showing conclusively that the court did not consider it at all in rendering its judgment. From what has been said, it is manifest that this paper was an exceedingly important one to determine the rights of the parties, and its exclusion on the trial was error.,

The lease from the superior landlord to the defendant Quinn was also offered in evidence and excluded, which, under the evidence in this case, we think was error, as it is claimed the agreement first excluded has reference to the tenants of the superior landlord, and it was necessary to have both papers before the court in order to determine the plaintiff’s and defendant’s respective rights to the premises.

Mr. Abercrombie and the plaintiff were allowed by the court to testify as to the value of the premises occupied by the defendant. Neither of them were shown to be experts as to such value, or to have had any experience in regard to the renting of premises, and we tliinlc the admission of this evidence was error under defendant’s objection.

We also think the damages allowed by the court for the use and occupation of these premises excessive. Defendant testifies: The entire loft was about one hundred and fifteen by twenty-five feet, and that he had a space about five feet by twelve, in which he had only two girls working; he did not occupy it under this agreement for more than half a month. Twenty-seven dollars is three or four times more than the ratable proportion of the loft occupied by the defendant was worth according to this testimony.

The judgment should, therefore, be reversed, with costs to the appellant.

Bischoff and Pkyob, JJ., concur.

Judgment reversed, with costs to appellant.  