
    LEOPOLD v. BAUM.
    (Supreme Court, Appellate Term.
    June 5, 1908.)
    1. Vendor and Purchaser—Right to Rent.
    Where a lease provides for payment of rent monthly in advance, the tenant is justified in paying such rent in advance, as against a purchaser of the premises who takes title during the month.
    2. Landlord and Tenant—Action for Rent—Evidence of Payment.
    In an action for rent for a certain period, evidence held sufficient to show payment by the tenant.
    Appeal from Municipal Court, Borough of Manhattan, Ninth District.
    Action by Katherine Leopold against David M. Baum. From a judgment for plaintiff, defendant appeals.
    Reversed.
    
      Argued before GILDERSLEEVE, P. J., and DAYTON and GERARD, JJ.
    Isaac V. Shavrien, for appellant.
    Theall & Beam, for respondent.
   GERARD, J.

Action for rent for apartment from. September 15, to September 30, 1907. Lease made by former owner to defendant was from June 15, 1906, to September 30, 1907; rent payable in monthly payments of $60 each, on 1st of month during term, in advance. Plaintiff took title to premises May 15, 1907, and an assignment of lease and ■“all rights in unexpired term” from the former landlord, one Kilpatrick.

Defendant swears he paid Kilpatrick in advance for May rent, and thereafter, on or about the 1st of each month, paid plaintiff for that month in advance. Checks about 1st of June, July, August, and September corroborate this. Defendant admits he owes Kilpatrick, former owner, for one half month’s rent for November, 1906, and which he withheld because of dispute. Plaintiff produced no assignment of rent due Kilpatrick. Defendant was justified in paying May rent in advance on 1st of May to former owner, and has since paid plaintiff according to the terms of the lease.

Judgment should be reversed, and new trial ordered, with costs to appellant to abide the event. All concur.  