
    (72 Hun, 474.)
    NASH v. SPRINGSTEAD.
    (Supreme Court, General Term, Fifth Department.
    October 20, 1893.)
    Landloed and Tenant—Action foe Rent.
    Defendant took possession of a house under an agreement with plaintiff for a short time, and paid plaintiff the rent therefor, but refused to take a longer lease at the rent asked. Defendant held over after the time specified had expired. Held, in an action for rent for the time defendant held over, that it was competent for defendant to show that, after the lease from plaintiff expired, she rented the house from plaintiff’s husband, who was a part owner thereof, as such evidence tended to rebut the presumption that defendant’s holding over was an implied acceptance of plaintiff’s terms.
    Appeal from Chautauqua county court.
    Action by Emery Nash, as executor of E. Belle "Woodin, deceased, against Sarah H. Springstead. From a judgment of the county court reversing the judgment of a justice of the peace, plaintiff appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIE and HAIGHT, JJ.
    A. C. Pritchard, for appellant.
    Bootey, Fowler & Weeks, for respondent.
   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 $60, of which no part had been paid except the sum of $1, and the justice gave judgment for the balance of $59. 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 Civil Proc. § 2935, subd. 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 therefor. 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 dis•pute 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 occupa® tian 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, with costs. All concur.  