
    The Trustees of the First Incoporated Presbyterian Congregation in Salem, vs. Jason Williams.
    NEW-YORK,
    May, 1832
    In an action of ejectment by a landlord against his tenant seeking a re-entry for non-payment of rent for want of distress, the defendant is concluded by his admission, made at the time of the service of the declaration in ejectment, that there was not sufficient property on the premises Bable to distress to countervail the arrears of rent,and will not bepermitted to prove that such admission was untrue.
    The plaintiff may avail himself of such admission, although the party making it be but a tenant at will.
    This was an action of ejectment, tried at the Washington circuit in June, 1830, before the Hon. Esek Co wen, one of the circuit judges.
    The plaintiffs claimed to re-enter as the landlords of the premises in question, for the non-payment of rent. They shewed a lease of the premises from themselves to one R. Boyd, jun., bearing date,in 1803, for the term of 999 years, reserving a rent of $10 per annum, payable annually on the 1st May, containing clauses of distress and right of re-entry, &c. Five years rent was claimed to be due; at the time of the service of the declaration in ejectment, to wit, on the 7th May, 1830, the defendant was in possession, and although there was property upon the premises, he declared that it did not belong to him, and what property there was on the premises was exempted by law from being distrained for rent. On the part of
    
      the defence, it was proved that the lease by various mesne assignments had come down from the original lessee, to D. Russell, Esq. who let the premises in question to the defendant for the term of one year, from the 1st March, 1829, at a rent of $60 per annum, and that at the time of the service 0f t¡le declaration there was property on the premises subject to distress, to an amount more than sufficient to countervail the rent. This evidence was objected to as improper, by the plaintiffs, who insisted that the defendant was estopped by his declarations, but the objection was overruled by the judge, who decided that the declarations of the defendant at the time of the commencement of the suit were only prima facie evidence ; that the defendant was at liberty to prove them untrue, and directed the jury, that as such declarations had been proved to have been untrue when made, to find a verdict for the defendant. The jury found accordingly. The plaintiffs now move for a new trial.
    J. Willard, for the plaintiffs.
    
      D. Russell, for the defendant.
   By the Court,

Sutherland, J.

The only question in this case is, whether the defendant was concluded by his admission, made when the declaration was served, that there was not sufficient property on the premises liable to distress, to countervail the arrears of rent. I am clearly of opinion that he was estopped by that admission,from controverting the fact upon the trial. The plaintiffs had a right to rely upon it,, and the defendant ought not tobe permitted to defeat the plaintiffs action, by showing that what he then said was false, and therebyreapan advantage fromhis own wrong and falsehood. The defendant, although he may occupy the premises as tenant at will, or for a short term, is still the real party to the suit; he might have given a cognovit,orterminated the suit by a voluntary surrender of the possession, if made without collusion and in good faith, and it is not perceived why his admissions in a matter of this kind should not have the same effect as though he were the only person interested in the premises. The party under whom he entered, may at any time within sis months after the plaintiff shall have taken possession of the premises, under his recovery, be restored to the possession, and to all his rights as lessee by paying the arrears of rent and costs. 2 R. S. 506, § 33.

New trial granted.  