
    Meyer Foster et al., Resp’ts, v. Edmund T. Oldham, Assignee, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 19, 1893.)
    
    Assignment fob creditors—Liability of assignee for rent—Evidence..
    Linder an assignment for the benefit of creditors the lease of the premises occupied by the assignor passes to the assignee, who becomes liable for rent of the premises for the time he actually occupies them even without a promise to do so, and hence the admission in evidence, in an action for rent, of his promise to pay, is not error.
    Appeal from a judgment of the district court of the city of New York for the seventh judicial district.
    
      Charles R. Putzel, for resp’ts; Wilbur Oldham, for app’lt.
   Per Curiam.

The action was brought to recover of the-appellant, as assignee of Pearce & Co., four months rent of certain premises claimed to have been occupied by him as assignee, etc. The appellant contends that the justice below _ erroneously admitted the testimony, of certain witnesses tending tey prove a promise by the defendant to pay the rent of the premises occupied by him, and that the justice at the close of the case-erroneously refused to dismiss the complaint.

There was no error in admitting defendant’s promise to pay. Under the general assignment the lease as well as the other property of the assignors was conveyed to him. It is true he was not bound to ratify the lease; but if he occupied the premises he was bound to pay rent for them even without a promise, and therefore the evidence objected to could not have injured the appellant.

As a rale the assignee of a lease is not liable for the rent of the demised premises except for the time he occupied them. 2 Platt on Leases, 416; Taylor on L. & T., § 444. This is as true of an assignee under an assignment as of an assignee of a lease. Litchfield v. White, 7 N. Y., 438; Journeay v. Brackley, 1 Hilt., 447; Stern v. Florence Sewing Machine Co., 53 How. Pr., 478 ; Anderson v. Hamilton, 16 Daly, 18; 29 St. Rep., 712. But he is liable for the time he actually occupied the premises. It is true that in such case it may be that he is not liable under the lease, but on a quantum, meruit. It will however be assumed that the rate agreed to be paid by the assignors to the landlord was a reasonable rent. There being a conflict as to whether the-appellant was in actual possession, it was a question of fact for the court below to determine, and we think from all the evidence-it properly decided that question of fact in favor of the respondents^

The judgment should, therefore, be affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.  