
    VALENTINE, Appellant, v. HEALEY et al., Respondents.
    (Supreme Court, Appellate Division, First Department.
    December 19, 1902.)
    Action for rent by Henry G. Valentine against Warren M. Healey and another. From a judgment entered on direction of the court dismissing the complaint after trial at trial term,, plaintiff appeals. Reversed.
    John Notman, for appellant.
    Robert Thorne, for respondent.
   O’BRIEN, J.

There are three facts that did not appear at the former trial, but were established upon the new trial, which, in our opinion, distinguish the case, and make inapplicable the rule stated as controlling on the previous appeal. Valentine v. Healey, 1 App. Div. 502, 37 N. Y. Supp. 287; Id., 158 N. Y. 369, 52 N. E. 1097, 43 L. R. A. 667. The first is, the evidence now shows that Valentine joined: in the original lease with Healey. The second is that notice in writing was sent by Valentine to Healey, objecting to the firm’s holding over or retaining the property, unless it was taken for a year. The third fact, now clearly brought out, is that Healy did not undertake, as a tenant in common, to reinvest himself with possession, but that a different entity or firm, known as “Healey & Co.,” tenants under the old lease, held over and retained possession of the premises. The judgment appealed from should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur, except VAN BRUNT, P. J., and McLAUGHLIN, J., who dissent.  