
    The David Stevenson Brewing Co., Respondent, v. Margaret Culbertson, Appellant.
    (Supreme Court, Appellate Term,
    November, 1896.)
    1. Landlord and tenant — Relation of,
    On the purchase of a store and fixtures from respondent, the appellant assigned to it a lease of the premises from another person, which expired' the following May, arid respondent thereupon executed ,a lease to her for a term, of years, which she also signed. Held, that the conventional relation of landlord and tenant existed between them. . ■
    
    
      2. Lease — Delivery.
    Delivery of the lease at the time of its-execution will be assumed , where ■ the tenant has gone -into actual- possession.
    Appeal by tenant from final order made in summary proceedings by justice of the Eighth'District Court.
    Benjamin Patterson, for appellant.
    L. J. Somerville (W. G. McCrea, of counsel), for respondent.
   McAdam, J.

This is an appeal from a final order made in a summary proceeding on the petition of the David Stevenson Brewing Company to dispossess the tenant for nonpayment of rent. The facts, as we gather them from the return, are substantially these:

About December 15, 1895, the tenant went to the office of the brewing company, a corporation which was the owner of the store and fixtures No. 384 Tenth avenue, this city, and made a contract for the purchase thereof for $3,000; $300 to be paid in cash, $200 in indorsed notes, and $2,500 in instalments, secured by chattel mortgage.

In some manner, which does not clearly appear, the tenant held a lease from one Higgins, expiring May 1, 1896. By the arrangement made this lease was assigned to the company, and it thereupon executed to the tenant a lease, wherein it as lessor demised unto the tenant the store in question for the term of three years and four and a half months from December 15, 1895, at the annual rent of $1,400, payable in equal monthly payments in advance. The Higgins lease is not annexed to the return, but the assignment thereof recites that the lease bears date December 15, 1895, the day on which the transaction was closed. So that the various documents represent the consummation of one 'transaction. The lease by the company to the tenant was executed on behalf of the former by its president, and by the tenant personally under seal, and was duly acknowledged.

The company thereupon made a bill of sale of the store to' the tenant in conformity with the arrangement; the intention evidently being that notwithstanding whatever relations existed before, the. tenant should after December 15, 1895, become the tenant of the company at the rental stated. Pursuant to this agreement the tenant’s brother on her behalf paid the January rent to the collector of the company, and took a receipt therefor in her name. The rent for February, March and April was not paid after demand therefor, whereupon the proceeding was commenced that culminated in the order appealed from.

These facts clearly establish the conventional relation of landlord and tenant between the parties, and authorized the landlord to invoke the aid of the statute.

. Upon the trial the tenant claimed" that no such relation existed; that she was still the tenant of FEggins, and the proceeding ought to have been instituted by him. She conceded that the rent claimed had not been paid to anyone, and did not dispute the. demand on her therefor by the petitioner as landlord.

How the tenant’s contention could prevail in the face of the lease executed by her, and the fact that she had paid rent to no one, it is difficult to understand. Her counsel claimed that the lease from the petitioner had never been delivered, and it had, therefore, no efficacy. But there was no satisfactory evidence on that subject produced by the tenant. She did not take the witness stand, and having actual possession of the property under the arrangement stated, it is fair to assume that the lease was delivered at the time of its execution, Oneta v. Restano, 26 Pac. Repr. 788. As it was signed by both parties it was immaterial whether she had' a counterpart or not, so long as she was content to be without one.

If the landlord had sued for rent upon a lease under which the tenant had declined to enter into possession, delivery might have been material as bearing on the question whether the lease became operative or not, and the landlord might have been obliged to proye it. Witthaus v. Starin, 12 Daly, 226. But that is not this ease. This was a. proceeding to require the tenant either to pay the rent or surrender the possession she was enjoying under the lease in question.

There being no substantial def ense, the justice properly awarded possession of the premises to the landlord, and the final order must be affirmed, with costs.

Daly, P. J., and Bischoff, J., concur.

Final order affirmed, with costs.  