
    Thomas Jennings v. James Alexander.
    O. "W. B. hired certain premises; of which, the plaintiff’s assignor was owner and landlord, and 0. R. B. became surety for the rent. 0. W. B. having died, 0. R. B. took possession of the premises, and sub-let to the defendant. The plaintiff’s assignor having assented to this by taking an order of 0. R. B. on the defendant for his rent, and having refused to substitute the defendant as his tenant in place of 0. R. B., held, that he could not recover for rent of the defendant, the under-tenant, although there was some evidence of an express promise on his part to make a pavtial payment in settlement, there being no evidence of 0. R. B.’s 'assent to such payment.
    No action can he maintained by the lessor against an under-tenant upon the lessee’s covenant to pay rent.
    I^r can an action be maintained for use and occupation, unless there is an agreement for the use of the premises, express or implied, between the plaintiff and defendant.
    Appeal by defendant from a judgment of tbe Marine Court. This action was brought by tbe plaintiff as assignee of one Charles S. Roe, to recover rent.
    Charles S. Roe was the owner of premises No. 406 Sixth avenue. At the time he became the owner of the premises they were leased to one 0. W. Burnham — 0. R. Burnham being surety on the lease. 0. W. Burnham died. No letters of administration were taken out, but his widow assigned the lease to 0. R. Burnham, the surety, who took possession, and subsequently leased to the defendant. The plaintiff’s assignor, C. S. Roe, collected a part of the rent for the quarter previous to that for which this action is brought, by obtaining from 0. R. Burn-ham an order on the defendant therefor. And it appeared by the testimony of C. S. Roe himself, that being asked by 0. R. Burnham’s agent to take the defendant as a tenant, he declined to do so, and said he knew no tenant except the surety. It was also in evidence that the defendant had paid 0. R. Burnham’s agent the rent sued for, $25 in cash, and the balance of $125 in his note. At the time the rent was demanded of him on the part of the plaintiff’s assignor, and prior to his payment to 0. R. Burnbam, be claimed some deductions on account of gas-fixtures, and damages for leakage in tbe roof, but offered to pay $75 to Roe in full. Judgment was rendered in tbe court below for tbe plaintiff, from wbicb tbe defendant appealed.
    
      Augustus Prentice, for tbe appellant,
    cited Smith y. Stewart, 6 Johns. R. 46; Bancroft y. Wardell, 18 ibid. 489.
    
      Alfred Roe, for tbe respondent,
    cited Kenada y. Gardner, 3 Barb. S. 0. R. 589.
   Brady, J. —

There was neither privity of estate nor privity^f contract between tbe plaintiff or bis assignor and tbe defendant, and no action can be maintained by tbe lessor against an under-tenant upon the lessee’s covenant to pay rent. McFarlan v. Watson, 3 Comstock, 286. And no action to recover for tbe use and occupation of premises can be maintained, unless there is an agreement for tbe use of tbe premises, express or implied, between tbe plaintiff or bis assignor and tbe defendant. 1 R. S. 748, § 26 ; Wood v. Wilcox, 1 Denio, 38 ; Bancroft and wife v. Wardwell, 13 Johns. R. 489 ; Hall v. Southmayd, 15 Barb. 32. And such agreement not being by deed, if a certain rent be reserved by it, it may be used as evidence of tbe amount of recovery. 1 R. S., § 26, supra ; Williams v. Sherman, 7 Wend. 109.

The defendant entered under O. R. Burnbam, and not under tbe plaintiff, and it was necessary to show some promise, express or implied, to pay tbe rent to tbe plaintiff by tbe defendant, with tbe assent of bis lessor. In that case the action could be maintained. McFarlan v. Watson, supra. There is, however, no proof in this case that tbe lessor of tbe defendant ever assented to any such appropriation of tbe rent; but there is proof that 0. S. Roe, tbe plaintiff’s assignor, and owner of tbe fee, expressly declined to accept tbe defendant as his tenant. He so states himself, and bis statements are. conclusive on that subject. Tbe defendant would be excused from payment to bis lessor by proof of payment to tbe owner (Peck v. Ingersoll, 3 Selden’s Rep. 525), for bis own protection; but tbe evidence bere does not show a state of facts to wbicb that rule would be applicable. A mere promise by an under-tenant to pay the original lessor, without tbe assent of his landlord, even if unqualified, would not be sufficient to bind him; but tbe proof in this case is of an offer of about $75, and, as it would seem, by way of compromise.

Tbe respondent places bis right to recover on what be designates tbe attornment of tbe defendant to tbe plaintiff’s assignor, and tbe offer already mentioned. This position cannot be maintained. As between tbe plaintiff’s assignor and tbe lessee of bis grantor, there was no necessity for any attornment, tbe land pfving been conveyed while occupied by such lessee (1 Rev. Stat. 739, § 146) ; but tbe attornment by the defendant to tbe plaintiff’s assignor, if proved, would have been void. They were strangers, and tbe defendant’s landlord did not consent. 1 Rev. Stat. 744, § 3. There is, however, no evidence to show that tbe defendant attorned to tbe plaintiff’s assignor, and nothing in tbe case from wbicb any inference in respect thereto can be drawn, except the offer referred to. That, for tbe reasons assigned, is insufficient for any purpose in this action.

I do not deem it necessary to consider tbe proof of payment by tbe defendant to bis landlord was such, as tbe conclusion is, from the views presented, that the plaintiff was not entitled to a judgment on the evidence produced.

Tbe judgment of the court below must be reversed.  