
    Oscar Miersch, Resp’t, v. Felix C. Bivin, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    Landlord and tenant — Proof of relation — When a question for jury.
    The owner of certain property conveyed the same, reserving the use thereof for life and agreeing to pay taxes and insurance, and afterwards conveyed his life estate to one who leased the same to plaintiff. Plaintiff claimed to have leased the property to defendant for the remainder of his term. In an action for rent defendant testified that he bought the premises of the owner of the fee and went into possession under her, and that she was in possession at the time. He also offered to prove that the life tenant had failed to pay the taxes and insurance and had committed waste, which was excluded. Held, that there was an issue of fact for the jury, and that a direction of a verdict for the plaintiff was error.
    
      Appeal from judgment in favor of plaintiff, entered upon a verdict directed by the court.
    Action to recover rent of farm claimed to have been rented by plaintiff to defendant.
    
      Eugene B. Travis, for app’lt; Clayton Ryder, for resp’t.
   Barnard, P. J.

Henry R. Baldwin rented to the plaintiff a farm of thirty acres in Carmel, Putnam county, for one year from the 15th day of January, 1890, at the yearly rent of $350 payable monthly. On the 8th of October, 1887, the farm belonged to one Henry S. Baldwin and he, on that day, conveyed the title to Laura Baldwin, reserving a life estate to himself, the grantor, therein. On the 10th of February, 1888, Henry S. Baldwin conveyed this life estate to Henry R. Baldwin. It will be seen from these facts that when the plaintiff took his lease, Henry R. Baldwin owned the right to use the farm during the life of Henry S. Baldwin. The plaintiff gave evidence tending to show that he leased the property to defendant for the remainder of his term at the same rent he was to pay his landlord, Henry R. Baldwin, therefor, and that the defendant agreed to pay the same to plaintiff and entered into possession under that agreement. The defendant denies this agreement and gives evidence to the effect that he bought the property of Laura Baldwin and entered into possession in May, 1890, under an agreement to purchase of Laura Baldwin. That Laura Baldwin was in possession before the defendant entered and that she delivered possession of the premises to him. This made an issue of fact for the jury.

The plaintiff was bound to prove the conventional relation of landlord and tenant between himself and the defendant, and he gave plain and apparently convincing evidence that there was such a relation created by the act of the parties. The defendant gave equally clear and apparently convincing testimony to the contrary, and further, that he toolc possession under a contract to purchase from an owner of the fee in possession and that no such relation of landlord and tenant existed between the parties. It is not clear that Laura Baldwin did not have the right of re-entry. As the case stands, proof that the life estate had not paid taxes and insured the property, as bound by the- clause reserving the life estate was offered and excluded. At all events, the defendant, on his theory, was not plaintiff’s tenant and was bound to acknowledge his own lease. Tilyou v. Reynolds, 108 N. Y., 558; 13 St. Rep., 853.

There should be a new trial, with costs to abide event.

Pratt, J., concurs; Dykman, J.,. not sitting.  