
    William H. Scheurer et al., Appellants, v. The Ebling Brewing Company, Respondent.
    
      .Landlord and tenant — action for rent — defense that defendant was simply mortgagee and not in possession of premises when rent accrued.
    
    
      Schemer v. Ebling Brewing Co., 186 App. Div. 968, affirmed.
    (Argued December 9, 1920;
    decided December 31, 1920.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 27, 1918, reversing a judgment in favor of plaintiffs entered upon a verdict and granting a new trial. Plaintiffs brought this action to recover rent reserved under a lease, alleging that the lease had been assigned to defendant and that defendant had entered and had occupied the premises since the assignment and contending that, therefore, defendant, by privity of estate, had become obligated to pgy the rent. Defendant’s contention was that its interest in the lease was that, not of an assignee, but of a mortgagee, at most, of a mortgagee in possession, and that before ffiny rent accrued it had canceled the mortgage debt and retransferred the mortgaged term to the mortgagee, and that when the rent accrued for which this action was brought it was not in possession of the premises.
    
      Harry T. Weekes for appellants.
    
      Eugene Cohn for respondent.
   Order affirmed and judgment absolute ordered, against appellants on the stipulation, with costs in all courts; no opinion.

Concur: His cock, Ch. J., Chase, Cabdozo, Pound, McLaughlin, Cbane and Andbews, JJ.  