
    Samuel Cole, App’lt, v. Samuel B. Sanford et al., as Executors, etc., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 13, 1894.)
    
    1. Lease—Renewal—Presumption.
    Where a landlord permits the tenant to occupy after the expiration of the lease and accepts a month’s rent at the rate stipulated in the lease, the presumption is raised that the lease is renewed for another year.
    
      2. Same—Rebuttable.
    But such presumption is a rebuttable one.
    3. Same.
    It is not rebutted by the fact that the tenant after his eviction, paid rent up to the date thereof.
    Motion for a new trial on a case and exceptions, ordered to be heard at general term in the first instance.
    
      Benjamin Scharps, for app’lts; Be Witt 0. Brown, for resp’ts.
   Eollett, J.

The right by which the plaintiff claims to have occupied, the premises is not set forth in his complaint, but it appears by the answer and the concessions on the trial that he was a lessee. By these concessions it appears that his lease expired on the 1st day of May, 1891, and that he paid, and Taylor accepted, $333.83, the rent for that month, but the circumstances under which the payment was made are not disclosed by the concessions nor by the evidence. The landlord having permitted the tenant to occupy the leased premises after the expiration of the term, and having accepted a month’s rent from him at the rate stipulated in the lease, a presumption is raised that the lease had been renewed for another year, Clark v. Howland, 85 N. Y. 204; Schuyler v. Smith, 51 N. Y. 309 ; Laughran v. Smith, 75 N. Y. 205; 4 Kent, Comm. (13th Ed.) 114, note x; Wood, Landl. & Ten. 76.

The complaint in the action for rent brought in the city court of Brooklyn contains allegations which, if they had been established, would have constitutéd a defense to this action, provided the eviction, was effected at the proper time and in the proper manner; but that complaint, though introduced in evidence, is no evidence of the truth of the allegations therein contained. The rent for June and July, 1891, fell due on the first days of those months; so there was, by the terms of the lease, two months’ rent due when the tenant was evicted, and it is well settled that an unlawful eviction is not a defense. We are not sp'eaking of counterclaim to an sction brought for the recovery of the rent due and payable before the eviction. Giles v. Comstock, 4 N. Y. 270 ;■ O’Brien v. Smith, 37 St. Rep. 41; 13 N. Y. Supp. 408. And the fact that the tenant, after his eviction, paid rent up to the date thereof, does not rebut the presumption that he was entitled to occupy the premises for another year. The presumption that the lease was renewed for another year, arising from permitting the tenant to hold over and accepting rent from him, is a rebuttable one, and it may be that the defendants, on a new trial, will be able to show that the plaintiff held over under terms justifying their testator in evicting him; but nothing of the kind was shown on this trial, and the plaintiff’s exceptions must be sustained, 'and his motion for a new trial granted, with costs to him, to abide the event.

All concur.  