
    John McClave, Respondent, v. John McAinsh, Appellant.
    Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Oourt of the city of Hew York, tenth district, borough of Manhattan.
    
      G. W. Dease, for appellant.
    Jeroloman & Arrowsmith, for respondent.
   Per Curiam.

The plaintiff undertook to show on the trial that the defendant, in March, 1900, leased the premises described in the complaint for a year from the 1st of May, 1900. His testimony which was the sole testimony on that point was contradicted by the defendant. If this was the whole case we would not interfere with the decision of the justice, who had the witnesses before him, but the plaintiff is contradicted by his letters of the 19th and 20th of April, 1900, in which letters he does not claim that there had been a new leasing, but claims the right to hold the defendant under the old lease. It seems to ns that if the plaintiff had made an oral lease with the defendant as claimed by him, the plaintiff, he would not have written the letters above referred to. In both of the letters he puts his right to hold the defendant upon the ground that because of defendant’s failure to give him a three months’ notice of his, the defendant’s intention not to renew a lease, he thereby became responsible for the rent of the premises for a full year commencing May first. In his letter of April twentieth plaintiff says: “ I decline to release you from the payment of rent of said building upon the ground set forth in my letter of yesterday. Viz.: That under the terms of the lease, if it was your intention to vacate you should have given me notice on or before February first last.”

A careful perusal of the evidence convinces us that there was no new leasing.

Judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.

Present: Tetjax, P. J., Scott and Du geo, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  