
    The Peoples Trust Company et al., as Executors of Kate Duryea, Deceased, Respondents, v. Union Ferry Company of New York and Brooklyn, Appellant.
    
      Landlord and tenant — lease — tax — covenant by lessee to pay taxes levied on property during term — liability for tax levied but not due until date of expiration of lease — validity of tax.
    
    
      Peoples Trust Co. v. Union Ferry Co., 219 App. Div. 792, affirmed.
    (Argued December 5, 1927;
    decided January 10, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 11, 1927, unanimously affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court in an action to recover the amount of a tax paid by plaintiffs for land leased by defendant from their testatrix, the lease containing a clause that defendant, “ its successors and assigns, shall and will well and truly pay all taxes, water rents and assessments which may be laid or imposed on said premises.” The tax was imposed in March, 1913, but did not become a lien until May 1, 1913, on which day the lease terminated. Defendant contended it was liable to pay only such taxes as became liens and were payable during the term of its lease and that in any event the tax was not properly levied and was invalid.
    
      
      George P. Hotaling for appellant.
    
      James F. McNaboe for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Crane, Andrews, Kellogg and O’Brien, JJ. Dissent: Cardozo, Ch. J., and Lehman, J., on the ground of error in rejecting evidence of the invalidity of the assessment.  