
    Mayer Foster et al., Resp’ts, v. Edmund T. Oldham, as Assignee, etc., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed May 7, 1894.)
    
    Lease—Assignment.
    Where a person other than the lessee is shown to he in possession of leasehold premises, the law presumes that the lease has been assigned to him.
    Reargument of an appeal, by the defendant, from a judgment of the district court in the city of Mew York, for the seventh judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff. The decision in the former appeal is reported in 4 Mise. Rep. 201; 53 St. Rep. 488. Action for rent. The answer was a genereal denial. The opinion states the facts so far as they are material.
    
      Wilber & Oldham, for app’lt; Sumner B. Stiles, for resp’ts.
   Giegerich, J.

This is a reargument of the appeal taken herein by the defendant. It is now claimed, by the appellant, for the first time, that the final order granted by default in summary proceedings instituted by the respondents against John Pearce, Jr., tenant, and Henry M. Leverich and Edward T. Oldham,' assignees, under-tenants, to recover possession of the premises in question, is an adjudication binding upon the respondents, which creates an estoppel on the theory that the appellant was an under-tenant. Assuming that the final order in such summary proceedings was an adjudication that the appellant was an under-tenant, still, that would have no bearing upon the decision of this appeal, as the appellant promised to pay the rent, which was an independent agreement, made upon sufficient consideration, and was binding upon him. Appellant also claims that a lease was outstanding in another tenant for the very period rent is demanded. This claim is based upon the fact that the lease of the premises in question was made to one John Pearce, Jr., and, as Pearce & Co., a firm, occupied the premises at the time of their assignment to the appellant for the benefit of creditors, and no assignment of the lease by John Pearce, Jr., having been proven, the appellant argues that the lease was in John Pearce, Jr., and that he alone is liable for the rent. The authorities, however, do not favor this contention. When a person, other than the lessee, is shown to be in possession of leasehold premises, the lawr presumes that the lease has been assigned to him. Bedford v. Terhune, 30 N. Y. 453 ; Frank v. N. Y., L. E. & W. R. R. Co., 122 id. 197, 219; 33 St. Rep. 235, and cases cited. There was, therefore, a direct privity of estate between the respondent and the general assignee of the assignors of the lease. The justice determined, upon a conflict of evidence, that the appellant occupied the premises for the months of July, August, September;.and October, 1891, for which period respondents demanded rent, and ye think such determination of that question of fact is amply supported by the evidence. The fact that the appellant acknowledged his liability and promised to pay the rent, only tends to made a stronger case against him. This disposes of all the questions raised by the appellant. We have re-examined the record, and, after again carefully considering the evidence, we are satisfied that the decision of the justice was, in all respects, correct

The judgment should be affirmed, with costs.

Bischoff, P. J., concurs.  