
    Simon M. Rosenblatt et al., Respondents, v. Daniel T. Samson, Appellant.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Eew York, borough of Manhattan, seventh district, rendered in favor of the plaintiff by the court, without a jury.
    The action was originally brought to recover $233.33 for the defendant’s alleged use and occupation of the premises known as Eos. 509, 511 and 513 Water street, and Eos. 70, 72, 74 and 76 Eutgers street in the borough of Manhattan, from the 2d day of September, 1897, to and including October 11, 1897; but, upon the trial, the complaint was amended to conform to the proof, by setting up a cause of action on a contract of hiring.
    The pleadings were oral and the answer a general denial.
    The material facts are stated in the opinion.
    John H. Corwin, for appellant.
    Henry V. Rothschild, for respondents.
   Giegerich, J.

On or about the 31st day of August, 1897, a warrant was issued at the instance of the plaintiffs to remove for nonpayment of rent the tenant in possession of the premises above mentioned, to-wit, one Catherine Joyce, who was doing business under the name and style of the Joyce Trucking Company, and a city marshal named Gross was intrusted with its execution. Coincidently the defendant employed another city marshal named Barker to foreclose a chattel mortgage against property owned by the same lessee and contained within the' demised premises. Thus the two marshals, in the performance of their respective missions, met at the premises named, and by mutual understanding deferred action upon the warrant until the following day, when the plaintiff Simon E. Eosenblatt, the lessee’s husband and the defendant, together with several others, again met at the said premises. Exactly what occurred at this second meeting is seriously disputed by the parties litigant and their witnesses.

According to the plaintiffs’ testimony, the defendant there stated that he had arranged with Mrs. Joyce to take charge of the business for the purpose of effecting its sale, and for the occupancy of said premises agreed to pay a monthly rental of $175. The plaintiff Eosenblatt was partly corroborated by the assistant to Marshal Gross, who testified, in effect, that execution of the warrant was abandoned upon defendant’s promise to make compensation during the period! he might occupy said premises. Yet the defendant denied in tobo the making of any such representations or promises, or that he had ever arranged for or taken possession of the premises. The defendant’s version is confirmed by two of his witnesses, one of whom, named Coger, the bookkeeper for the Joyce Trucking Company, testified that the defendant did not promise to pay the rent and did not represent him (witness) as his agent or the person who would pay the rent, and another, a witness named Harris, one of his attorneys, who likewise swore to having been present at the interview of September 1st, and to the absence there of any statement regarding the payment of rent.

The defendant urged upon the trial with considerable zeal that Mrs. Joyce, and not the defendant, was in actual possession of the premises in suit during the period for which rent is claimed, that the plaintiffs demised said premises to Mrs. Joyce for one year from May 1, 1896, by a lease bearing date April 29, 1896, and that upon the expiration thereof she became, with the assent of the plaintiffs, a tenant from year to year. In support of such contention there was introduced in evidence at the instance of the defendant, a paper purporting to be a yearly lease of the premises in question to Mrs. Joyce from May 1,1896, at a rental of $2,100, and which contained a covenant that the defendant would become ’surety for the payment of such rent. This paper bore the signatures of the respective parties thereto, save that of the defendant.

Testimony was given by the plaintiff Rosenblatt to the effect that Mrs. Joyce took and retained possession, pursuant to such lease, until January 1,1898, but later in his examination, we find evidence that the instrument referred to was never executed because Mr. Samson refused to sign it as surety, and it was never transferred to Mrs. Joyce.” And when asked, “ Have they ever had any lease since that lease % ” he answered, “ They have not, and never had that lease.”1

The defendant on his direct examination was asked this question : “ Had M!r. Rosenblatt asked you before that to become surety on the lease ? ” and, it being excluded on the plaintiffs’ objection, an exception was noted by the defendant. In view of the sharp conflict of' testimony with respect to the making of the alleged promise on the part of the defendant to pay the rent for the period referred to, this-question, in my opinion, should have been allowed. It certainly was relevant to the issues whether or not the defendant had theretofore refused to become a surety for the faithful performance by Mrs. Joyce, as tenant, of the covenants of a lease. Manifestly it was so> regarded by the plaintiffs, one of whom volunteered upon cross-examination the statement, as cited, that the writing was not executed because of the defendant’s refusal to become a surety thereon; and such testimony having been received without objection and no motion to strike it out having been made, leave should have been accorded the defendant to introduce testimony upon the subject. Under the circumstances, the exclusion of such question was error of so substantial a nature, to my mind, as to necessitate a new trial. It follows, from these views, that the judgment must be reversed and a new trial ordered, with costs to the appellant to abides the event.

Beekman, P. J., and Gtldebsleeve, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  