
    George C. Preston, App’lt, v. Samuel R. Hawley, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 2, 1892.)
    Use and occupation.
    In an action for use and occupation it appeared that defendant, as a general assignee, sold a factory building to plaintiff and requested permission to leave the goods on the premises until they could be disposed of or worked up, which was granted; that subsequently defendant objected to a charge for rent as excessive, saying that if he had known so much would bo charged he would have gone to a cheaper place. It also appeared that a watchman employed by defendant had a key, but it did not appear that plaintiff was excluded. Held, that there was no agreement of letting, and that an action for use and occupation could not be maintained.
    Appeal from dismissing the complaint
    The action is for use and occupation. The firm of Babcock & Watrous made a general assignment, conveying their individual and firm property to defendant as assignee for creditors. -
    By such assignment a large factory building, containing machinery for the manufacture of hats, owned by Babcock and, prior to the assignment, used by the firm, passed to the assignee. The assignee sold the factory and machinery at public sale June 7, 1883, and the plaintiff bought the same subject to mortgages of over $30,000. The deed was delivered about June 21, 1883, the day of its date.
    On the day of the sale, June 7, there was a large quantity of goods and stock, consisting of wool hats in all stages and conditions of manufacture, hat trimmings and bodies, distributed in process of manufacture all through the building, some of the hats being in the machines. Just after the sale a conversation took place between plaintiff and defendant, which plaintiff states as follows: “ I had a talk with Mr. Hawley on the day of the sale, after the sale, at the factory; the talk I had with him was in reference to the occupation of the property; he said he wanted permission to leave the goods there until they were disposed of or worked up.”
    The goods of defendant were in the machinery in a partially manufactured condition, and distributed all through the building.
    Mr. Howell, the agent of defendant, occupied the office three or four hours a day in the business of defendant, and went through the other rooms in the building frequently, nearly every day; had the key of the building; with six or eight other men in defendant’s .employ arranged the property in lots and catalogued it; during all the time he was there occupied the office and went through the building generally; used the building in connection with a straw hat factory which defendant was conducting. Henry Crum, a watchman, was hired by Mr. Howell at the direction of defendant. Crum stayed in the building day and night, and had all the keys; looked after the goods, turned them over, stirred up the hats in the machines to keep them from spoiling.
    On August 1, 1883, plaintiff wrote defendant a letter stating that taxes amounting to $169.47 and also insurance were due upon the property, and requesting payment of $250 on account of rent. On August 13 plaintiff wrote again, stating that he had drawn on defendant for $500 for two months’ rent, and requesting him to honor draft Defendant answered the second letter, and without disclaiming liability stated that the demand for rent was excessive, but continued to occupy the premises. Defendant afterwards, November, 1883, wrote plaintiff to come to New York with relation to the matter, and plaintiff went there and saw the defendant; the latter stated that plaintiff’s claim was “ excessive,” and that he ought not to charge so much. Plaintiff afterwards saw defendant in New York in October, 1887, on which occasion defendant said: “I am free to admit right here that I expected to pay you something, but the amount you charged was too much. If I had known you would have asked me so much I would have moved the goods to a cheaper place.”
    
      Preston & Chipp (Howard Chipp, Jr., of counsel), for app’lt; George Wilcox (F. L. Westbrook, of counsel), for resp’t.
   Per Curiam.

The evidence in the case appears to be not substantially different from that given on the former trial and passed upon by the general term. 39 St. Rep., 721. There was some additional testimony given on the last trial, but none materially changing the facts as they appeared in the case submitted to the general term, as such facts are stated in the prevailing opinion.

That the man who watched the store had a key, as shown on the last trial, does not sufficiently change the facts as to justify a reversal of the judgment. There is no evidence that plaintiff was excluded from the premises. We think that Justice Fursman at circuit was correct in deeming that he was bound by the holding of the general term to grant the motion for a nonsuit, and that there should be an affirmance of the judgment, with costs.

Mayham, P. J., Putnam and Herrick, JJ., concur.  