
    Emery Nash, Ex’r of R. Belle Woodin, Deceased, App'lt, v. Sarah M. Springstead, Resp’t.
    
      (Supreme Court, General Term,, Fifth Department,
    
    
      Filed October 20, 1893.)
    
    .Landlord and tenant—Evidence.
    Defendant rented certain premises from plaintiff for two weeks, but declined to take them for a longer term at the price asked. She continued in possession for seven months beyond the time specified. In an action for rent for such term, Held, that it was error to exclude evidence to show that after the expiration of the first term she rented the premises from plaintiff’s husband, who was a joint owner, and paid the rent to him, as such evidence would rebut the presumption of an acceptance of plaintiff’s proposition raised by such continued occupation.
    Appeal by the plaintiff from a judgment of the county court •of Chautauqua county, reversing the judgment of a justice of the peace.
    A. C. Pritchard, for app’lt; Bootey, Fowler & Weeks, for resp’t.
   Dwight, P. J.

The action was commenced by the plaintiff’s testatrix in her lifetime for the rent of a house, and her executor has since been substituted as plaintiff therein. The complaint alleges a contract of lease and occupation under it for a period of seven and a half months, whereby the defendant became indebted to the plaintiff in the sum of sixty dollars, of which no part had been paid except the sum of one dollar, and the justice gave judgment for the balance of fifty-nine dollars. The answer contained a, general denial and the further defense, among others, that the defendant rented the house from the husband of the plaintiff, who was a part owner with her of the property, and payment of the rent to him. The plaintiff demurred to the last mentioned defense, and that demurrer was sustained by the justice. This ruling was, at least technically, erroneous, because the practice in justice’s court permits of no demurrer to an answer except to a counterclaim. Code Civ. Pro., § 2935, sub. 4. The evidence showed that the defendant applied to the plaintiff for the use of the house for a week or two and desired to know how much she would ask for it by the month for a longer time. The plaintiff told her that she might have it for the short time mentioned for one dollar, and proposed to charge her eight dollars per month for it if she wanted it for the winter. The defendant agreed to pay her the one dollar for the week or two, but declined to rent it for a longer period, at the price named. The defendant went into the house under the agreement made with the plaintiff, and paid her the one dollar agreed upon, but she remained in the occupation of the house for the period mentioned in the complaint. On the trial she offered evidence to show that after the expiration of the week or two she rented the house for the remainder of the time from the husband of the plaintiff and joint owner of the property, and paid him there-, for. This evidence was excluded by the justice, and it must have been, chiefly, on the ground of this ruling that the judgment was reversed in the county court. We think the ruling was error, for which the judgment was properly reversed.

Of course if there had been an agreement between the parties for the renting of the property for the longer period mentioned, and the defendant had gone into occupation under that agreement, she would not have been at liberty during such occupation to dispute the title of the plaintiff or to attorn to any other person. But it is conceded that there was no such express agreement between the parties at any time, and that the defendant went into occupation of the property declining to accept the plaintiff’s proposition for a longer term than a week or two. Accordingly the contention of the plaintiff is that the fact of the defendant’s continuing in occupation after the expiration of the brief term'raises the presumption of the acceptance at that time of the plaintiff’s proposition for the longer term and an implied contract to pay therefor at the price proposed. The argument is legitimate, and so long as her continued occupation was unexplained the presumption was sufficient to justify the conclusion contended for. ‘ But it was to rebut that presumption, and account for the continued occupancy of the defendant on another theory than that of the acceptance of the plaintiff’s proposition, that the evidence in question was offered. That evidence would by no means have been conclusive, it may have been of but little weight, but it was, in our opinion, evidence to which the defendant was entitled as tending to rebut a presumption of fact upon which the case of the plaintiff depended.

For the error involved in the rejection of that testimony we think the judgment of the justice was properly reversed and that the judgment of the county court must be affirmed.

Judgment of the county court of Chautauqua county affirmed, with costs.

Lewis and Haight, JJ., concur.  