
    NORTON, Appellant, v. THWAITE, Respondent.
    (Supreme Court, Appellate Term.
    February 7, 1908.)
    Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by William F. Norton against Henry L. Thwaite. From a judgment in favor of defendant, plaintiff appeals. Reversed, and new trial ordered.
    Weill & Weill, for appelant. Henry C. Henderson, for respondent.
   PER CURIAM.

Defendant was a tenant of plaintiff’s grantor. Plaintiff claims that defendant agreed to vacate the premises on September 1, 1906; that he refused to do so, and plaintiff was obliged'to resort to dispossess proceedings, which resulted in the removal of defendant; and that plaintiff was damaged $488.-89, for which he sued. Judgment was given for defendant. Plaintiff appeals.- Plaintiff’s items of damage are $388.89 for damages caused by the alleged breach of contract to surrender the premises on September 1, 1906, being use and occupation .of premises for 20 days, and $100 expenses of the dispossess proceedings. The answer is a general denial. The question was whether or not defendant agreed to vacate on September 1st, and on this point the dispossess proceedings are conclusive. It is not disputed that defendant remained 20 days in September in the use and occupation of the premises. The judgment is against the evidence, and should be reversed. Judgment reversed, and new trial ordered, with costs to appellant to abide the event.  