
    Luthy v. Regan.
    
      (Supreme Court, General Term, First Department.
    
    November 13, 1891.)
    1. Landlord and Tenant—Action fob Damages to Premises—Right to Recover.
    In an action by a landlord to recover damages for injuries to demised premises done by the tenant, plaintiff testified that he was the owner of the premises, but defendant discovered after trial that plaintiff’s wife was the owner of the property, though plaintifi was in possession and received the rents thereof, the wife making uo claim thereto. Held insufficient ground for new trial, the relation of the parties as landlord and tenant not being changed thereby.
    2. New Trial—Newly-Discovered Evidence—Due Dilligenoe.
    In such case, the wife’s title appearing of record, defendant, with due diligence, might have informed himself as to the real ownership of the property before trial, and, having failed so to do, is not entitled to a new trial on the ground of newly discovered evidence.
    Appeal from special term, Mew York county. Affirmed.
    Action by Adolph Luthy against James Began. From a judgment dismissing the complaint, plaintiff appeals.
    Argued before Van Brunt, P. J., and Daniels, J.
    
      William King Hall, for appellant. Earley & Prendergast, for respondent.
   Van Brunt, P. J.

The plaintiff was a tenant of the defendant of certain premises in the city of Mew York from year to year until the 1st of May, 1890. In May, 1890, the defendant sued the plaintiff in the ninth district court to recover damages which had been sustained by the premises occupied by the plaintiff during his tenancy. The pleadings were oral. The complaint was for damages to the respondent’s house while in the possession and occupation of the appellant. The answer was a general denial, and the case was tried before a jury, and resulted in a verdict in favor of the respondent. From this judgment the appellant appealed to the general term of the court of common pleas. 11 N. Y. Supp. 709. Subsequently the appellant brought this action for the purpose of having the district court judgment vacated, and for damages, upon the ground of newly-discovered evidence. It appeared that upon the trial of this action, in response to a question of his counsel whether he was the owner of the premises, the respondent answered, “Yes;” whereas on the 28th of January, 1890, by deed duly recorded, he had conveyed the premises to his wife. This fact, which the appellant ascertained since the trial, is the ground upon which he claims to succeed in the action in this court. It appeared that no change in the possession occurred at or after the time of the delivery of the deed, the respondent continuing in possession and collecting the rents as before. Upon this state of facts the court below held that the action was not maintainable, and from the judgment thereupon entered this appeal is oaken. It seems to us there was no error in the disposition of the case by the court below. Yo matter where the legal title to the premises in question might be, the defendant was in possession of the premises, acting as landlord, and receiving the rents, the wife making no claim whatever thereto. The respondent, therefore, continued to be the lessor of the appellant, and the relation between them was in no respect changed. If, however, the question as to the person in whom the legal title was vested had been material in the district court action, it was one of the issues involved in that action, and the appellant was bound to use due diligence in ascertaining whether or not the respondent was the owner of those premises. The deed from the respondent to his wife was upon record, and, if ordinary diligence had been used for the purpose of ascertaining where the legal title was, it might easily have been ascertained. But it is extremely doubtful whether that was a question of any importance in the district court case, in view of the relations of the parties, and of the fact that the respondent was in possession, and exercising acts of ownership, presumably with the knowledge and assent of the wife. The judgment should be affirmed, with costs.  