
    Henry C. Valentine, Respondent, v. Warren M. Healey and John H. Zabriskie, Appellants.
    
      Landlord and tenant—nature of the tenure of a lessee who is also apart owner of the demised premises and, entitled to apart of the rent — amendment of cm answer on a second trial, by withdrawing cm admission made thereby —■ effect of holding over by a tenant after notice by him that he mil not renew a lease.
    
    In an action brought to recover rent under a lease, where it was claimed that the defendants held over after the expiration of the term thereof, it appeared that the premises in question were owned, by the plaintiff and by the defendant Warren M. Healey as tenants in common; that on May 30, 1891, they leased the premises to a firm composed of said Warren M. Healey and another; that three-fourths of the rent was payable to the plaintiff and one-fourth to the defendant Healey, and that the defendants remained in possession after the expiration of the term.
    
      Upon the trial of the action the defendants asked leave to amend their answer by-striking out the admission that they went into possession under the lease-(it appearing that they were in possession before the lease was made), which was refused.
    The defendants also offered to prove two letters passing between tho defendant Warren M. Healey and his firm, by which the firm notified Healey that they would, not avail themselves of their option to renew the lease, but would like to occupy the premises for a few weeks after the expiration of the term at a pro rata rent, and that Healey had replied to this that they might do so upon, certain conditions.
    
      Held, that, although one of the lessees, Warren M. I-Iealey, was a part owner of the demised premises, it did not alter the presumption that when the firm, including Healey, held over, they elected to renew the lease for another, year;
    That the amendment to the answer was discretionary with the trial court, did not change the issue, and was properly refused, where the admission sought to be withdrawn by the amendment had been allowed to stand after one trial and after the decision of the General Term upon an appeal from the judgment rendered thereon;
    That the letters which passed between the firm and Warren M. Healey were, properly excluded;
    That notice that the lessees would not renew the lease, even if it had been given to both the lessors, would not of itself have avoided the legal effect which must, attend a holding over after the expiration of the term;
    That Warren M. Healey could not, however, bind the plaintiff by a consent that. the lessees might hold over if they desired to do so;
    That-, as Healey's consent was given at a time when he occupied the position of a. lessee simply, and not that of a tenant in common, his consent to the occupation of the premises by his firm was ineffectual.
    Appeal by the defendants, Warren M. Healey and another, from-a judgment of the Supreme Court in favor of the plaintiff, entered upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit, and also from an order denying the defendants’ motion for a new trial made upon the minutes.
    The action was brought to recover rent under a lease. The real property leased was owned by plaintiff and the defendant Healey as tenants in common. Hay 30, 1891, these owners joined in a lease of the property to the defendants, who were co-partners, and one of whom, Healey, was a part owner of the property. The lease was for one year from the 1st day of Hay, 1891, at the yearly rent of §8,500, payable quarterly, three-fourtlis to the plaintiff and one-fourth to the defendant Healey, with the privilege to the lessees of a further term of two years at $7,000 a year, on their giving notice in writing to each of the lessors, and signing and executing agreements with such lessors on or before February 1, 1892. The lessees covenanted to pay the rent to plaintiff and the defendant Healey, and the assigns of each, and at the expiration of the term to quit and surrender the possession of the property. The lease contained other provisions usually found in leases, which do not appear to be important here.
    The complaint alleged and the answer admitted that the defendants went into possession of the property under the lease May 30, 1891, and remained in possession pursuant to such agreement until May 1, 1892, and that they continued and remained in possession of the property after the expiration of the term of one year. The plaintiff proved that the defendants occupied the property for the purpose of the manufacture and repair of carriages, and that their occupancy was substantially the same after as before May 1, 1892.
    The defendant's moved to amend their answer by striking out the admission that they went into possession under the lease, and by inserting an allegation putting that fact in issue. The evidence showed that they were in possession before the lease was made. This motion was denied and the defendants excepted.
    The defendants proved and offered in evidence two letters consti- • tnting the correspondence between the defendant Healey and his firm, bearing date April 29, 1892, wherein the firm notified Healey that they had not exercised the option to renew the lease for two years, and would not renew the lease, but would like to continue occupying the property a few weeks after the expiration of the term of one year, paying a pro rata rent for such use and occupation. Healey replied that they were at liberty to occupy the property at & pro rata rent for the period of such occupancy, and that this privilege was accorded to them only with the understanding and agreement that such occupancy should be subject to termination on a week’s notice from either party so as to permit a lease for the full year to other parties if desired. These letters were excluded under the objection that they were immaterial, irrelevant and incompetent, and the defendants excepted. Defendants also made a motion for a nonsuit and for the direction of a verdict for the defendants. Both these motions were denied and the defendants excepted.
    
      On motion of the plaintiff a verdict was ordered for the plaintiff for the amount of his share of the rent, and the defendants excepted. From the judgment entered on this verdict this appeal is taken.
    
      Robert Thorne, for the appellants.
    
      William, Allen Butler and Adrian H. Jolme, for the respondent.
   Williams, J.:

This case lias twice been tried. On the former trial the complaint was dismissed on the ground that Healey being a part owner of the property, it was to be presumed that he remained in possession after the expiration of the term of one year with his partner as part owner and not under the lease, and that, therefore, their remaining in possession did not entitle the plaintiff to treat the lease as renewed for another year. Upon a motion for a new trial on a case and exceptions ordered to be heard in the first instance at the General Term, the exceptions were sustained and a new trial ordered (86 Hun, 259). We see no reason for dissenting from the conclusion there arrived at.

There remain for us to consider only the questions as to the proposed amendment of the answer, and the exclusion of the correspondence between the defendant Healey and his firm. The allowance or disallowance of the amendment to the answer was a matter in the discretion of the trial court, and it does not seem to us that there was any abuse of such discretion. Whether the defendants were in possession of the property before the lease was made was immaterial. They made the lease, and from that time on, it being a lease of the whole property, they assumed to be and were in possession under the lease and that alone during the term of one year. The lease established the relation of landlord and tenant, and they could not be in possession under any other claim during the term of the lease. They admitted this in their answer, and such admission stood until after the decision of the General Term, and an amendment on the second trial was very properly denied.

The correspondence between the defendant Healey and his firm was properly excluded. It was immaterial and if admitted would not have changed the result. The firm letter to Healey was in effect a notice that the lessees would not renew the lease, and a statement that they desired to remain in the occupancy of the property a few weeks after the expiration of the term of one-year, paying rent for the actual time the occupancy continued. The notice that the lessees would not renew the lease even if it had been given to both lessors would not of itself have avoided the legal effect of the holding over after the expiration of the term. . (Schuyler v. Smith, 51 N. Y. 309 ; Haynes v. Aldrich, 133 id. 287.) The letter written by Healey was a consent that the lessees might hold over as desired by them, and if he had power to bind the plaintiff by such consent, then the ordinary legal effect of the holding over was avoided, and this action cannot be maintained. It is not claimed that the plaintiff had any knowledge of this correspondence. The lease by its terms made the rent payable to each of the tenants in common according to their respective interests in the property. Healey was not authorized to act for plaintiff as his agent or otherwise, and the consent could not be operative as plaintiff’s consent in any way. The only theory upon which it can be claimed that this consent of Healey’s avoided the legal effect of the holding over is that he was a tenant in common with plaintiff as owner of the property, and being such tenant in common he could give his firm the right outside of the lease to remain in the occupancy of the property. At the time this consent was given, however, he was, as we have seen, not in' possession or occupancy as owner, but merely as a tenant under the lease as a member of his firm. Such was the relation assumed by him and his firm in taking the lease, and they could not change this relation during the term so as to effect the plaintiff’s rights under the lease without his knowledge or consent.

It cannot be said that Healey by his consent given before the expiration of the term could avoid the legal effect of the holding over, when we hold that the legal effect of the holding over was not avoided by reason of Healey being a member of the firm that held. over.

We are of the opinion that the judgment should be affirmed, with costs.

Van Brunt, P. J., Barrett, Bumsey and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  