
    Andrew Wissel, Respondent, v. George Ott, Appellant.
    
      Ejectment — waiver by a tenant at will of his right to the statutory notice to quit — chapter 531 of the Laws of 1895 — assumption by the court that the plaintiff’s father died subsequent to its passage.
    
    A tenant at will, entitled to the statutory notice of thirty days to quit, waives that right where, in an action of ejectment against him, his counsel, a question having arisen as to the legitimacy of the plaintiff, states that the defendant disclaims any right to the premises if the plaintiff was the heir of his father.
    Chapter 531 of the Laws of 1895, by which a child born out of wedlock is made legitimate by the subsequent marriage of its parents, is not operative to divest any title acquired prior to its enactment, but where, on an appeal by a defendant from a judgment in favor of a plaintiff coming within the provisions of that act, the record is silent on the question as to whether the plaintiff’s father died prior to or after the enactment of that statute, the court will assume that the death occurred subsequent to it and sustain the plaintiff’s right as heir.
    Appeal by the defendant, George Ott, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of May, 1898, upon the decision of the court rendered after a trial at the Kings County Trial Term before the court without a jury.
    
      Stephen B. Jacobs, for the appellant.
    
      Thomas P. Mulligan, for the respondent.
   Cullen, J.:

This action is in ejectment to recover premises of which .the plaintiff’s father died seized. We are inclined to think that the defendant was a tenant at will, entitled to the statutory thirty days’ notice to quit, and that the refusal of the trial court to dismiss the complaint, made at the close of the plaintiff’s case, was erroneous.. (Larned v. Hudson, 60 N. Y. 102.) But the appellant is precluded from' raising this objection by his subsequent action on the trial. The plaintiff had put in evidence, as part of his case, a decree of the surrogate made in proceedings for the probate of heirship establishing his right to inherit the premises as sole heir- of his deceased father. The defendant proved, by a witness, that the plaintiff’s parents were married- in this country two years after the birth of the plaintiff in Germany. The defendant thereupon moved for judgment on the ground that the illegitimacy of the plaintiff precluded his inheritance. The record shows that the counsel for the defendant then stated that the defendant disclaimed any right to the premises if the plaintiff was the heir. This disclaimer disposed of any right the defendant might have had to continue his occupation till after thirty days’ written notice to quit.

This action was begun -on the 27th of July, 1897. There is nothing in the case to show when the plaintiff’s father died. By chapter 531 of the Laws of 1895,. the plaintiff, if born out of wedlock, was legitimatized by the subsequent marriage of his parents. Of course this statute could not divest any title that had accrued prior to its enactment. As the record is silent on this, subject, we must assume that the death of the plaintiff’s father was subsequent to the statute. Further, apart from the statute, the testimony of the witness for the defendant and the decree of the Surrogate’s Court raised a question of fact, on which question the decision of the trial court is controlling.

The judgment appealed from should he affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  